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Federal Courts: OK to

Intervene Off-Campus  

 

BY NANCY WILLARD

In reviewing situations where students have posted hurtful material online while off-campus, the federal courts have universally held that schools can respond if that speech causes, or there are solid reasons to believe it will cause, a substantial disruption at school or interfere with the rights of students to be secure.

The likelihood of a disruption is difficult to establish when a student targets school staff, but it is much more likely to occur when another student is the target of the online abuse. A well-crafted school district policy is one of the key factors.

The recent case in the Fourth Circuit, Kowalski v. Berkeley County Schools, included important language: “(P)ublic schools have a ‘compelling interest’ in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.”

However, another issue raised in the Kowalski case was the concern of due process and adequate notice. Although neither school district policy nor state law referenced the authority of the school to respond to off-campus speech, the Fourth Circuit determined there was sufficient notice. However, this was not the finding of a federal district court in California in the case of J.C. v. Beverly Hills Unified School District. In that case, the court found a lack of due process because neither the district policy nor state law specifically referenced off-campus speech.

Districts are strongly advised to ensure their bullying and harassment policy specifically includes language that provides authority for school officials to respond to off-campus speech that has or could cause a substantial disruption at school or interfere with the rights of other students to be safe at school and receive an education.

 

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