Legal Brief                                                         Page 9


Disciplining Students for

Off-Campus Conduct 




How far can school officials go to discipline students for off-campus behavior? In New Jersey, where I practice, the issue arises most often in the context of 24/7 “good conduct” policies, harassment under our state’s beefed-up anti-bullying legislation or online bashing of school staff.

A recent case from our state appeals court shows how well-intentioned efforts to keep students healthy and safe can run aground when they exceed limitations imposed by law.

The Ramapo Indian Hills Regional High School District in northern New Jersey required students involved in sports, clubs and other extracurricular activities to obey a code of good behavior at all times, on and off campus, and to refrain from any unlawful conduct outside of school.

On a legal challenge brought by a student and her family, the court found the policy exceeded the district’s authority because state regulations limited consequences for off-campus behavior to actions that “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” A desire to curb at-risk behavior or to inculcate standards of decency in students’ personal lives outside of school wasn’t enough to save the policy.

Disruptive Behavior
New Jersey is not alone in curbing school authorities’ jurisdiction over students’ off-campus conduct. Most states require some sort of nexus, a demonstrable effect on good order at school, and do not allow school districts to enforce their own standards of morality or wholesomeness on students’ personal lives after hours.

This is especially so when the behavior does not involve conduct per se but disruptive or offensive communications potentially protected by the First Amendment. In its landmark 1969 decision Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court rejected school officials’ attempts to discipline students for wearing black armbands to protest the Vietnam War, recognizing that
“[s]tudents in school, as well as out of school, are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

When students express their opinions on matters of general public concern, even when those opinions may be controversial or hurtful to others, school officials may impose discipline only when there is a palpable threat of substantial disruption to the orderly operation of the school. As later court decisions have confirmed, that goes double for off-campus expressive activity that filters its way back into the school environment.

Public Humiliation
A recurring scenario in our federal case law lately is the student who creates a phony page in the name of the school principal on a social networking site such as Facebook, complete with an unflattering or profanity-laced “profile” calculated to achieve maximum humiliation for the unfortunate staff member involved.

Because this activity occurs off campus, does not typically involve the use of any school technology and, though outrageously disrespectful, does not involve any threat of violence or disruption to school operations, it is difficult to rein in without violating students’ First Amendment rights as recognized by many of our federal courts. Staff members often are left to pursue claims on their own under the law of defamation or invasion of privacy.

For bad behavior not involving free expression protected by our federal courts’ interpretation of the First Amendment, determining whether discipline for an off-campus incident conforms to state “nexus” restrictions will continue to entail a subjective case-by-case analysis. But states have the prerogative to loosen those restrictions tomorrow if moved to do so, which begs the underlying policy question: What is the proper role of school districts in students’ lives?

To some, it’s simply to teach the three Rs. For others, public schools have become, by design or default, a social service agency responsible for feeding, babysitting, counseling, medicating and surrogate parenting our children. How much schools should “own” off-campus behavior must be considered against the backdrop of this larger debate, and school administrators, as stakeholders in this discussion, should press state legislatures and regulatory agencies to adopt guidelines that reflect the value judgments of the local community.


David Rubin is an attorney practicing education law in Metuchen, N.J. E-mail: rubinlaw@att.net. Twitter: @dbresqnj


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