Oregon federal court upholds discipline of student for off-campus lewd speech deemed sexually harassing

C.R. v. Eugene Sch. Dist. 4J, No. 12-1042 (D. Ore. Sept. 12, 2013)

Abstract: A federal district court in Oregon has ruled that a school district did not violate a student’s free speech rights by suspending him for sexually harassing speech off-campus.  The court concluded that the free speech claim was controlled by the substantial disruption/invasion of rights standard established in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), and that under that standard school officials were justified in taking disciplinary action based on the harassing speech even though it occurred off-campus.  It also rejected the student’s procedural substantive due process claims and his First Amendment retaliation claim.

Facts/Issues: C.R. was identified as one of a group of male students that engaged in verbal sexual harassment of two disabled students while walking home after school.  C.R. was suspended for two days for the following conduct, as summarized by the assistant principal:

C.R. along with some other boys verbally harassed two students with disabilities.  One victim was a female hearing impaired, 6th grader, and one student was a 6th grade autistic male.  The comments contained sexual connotations referring to [oral sex] in connection to B.J.’s restaurant.  C.R. admitted that the comments were inappropriate.  It should be noted that the female student stated that she understood what the B.J. comment was referring to and did not feel safe.

C.R. filed suit against the Eugene School District 4J (ESD) raising three federal claims, along with a number state law claims.  The federal claims charge ESD: (1) violated C.R.’s First Amendment free speech rights by disciplining him for after hours, off-campus speech that was not offensive or harassing; (2) deprived him of his property, liberty, and reputational interests; and (3) retaliated against him for exercising his First Amendment speech rights.

Ruling/Rationale: The district rejected all of C.R.’s federal claims, granted ESD’s motion for summary judgment, and dismissed the state law claims.

The essence of C.R. claim was that he was disciplined for off campus, after-school speech.  The parties agreed that the analysis of this claim was controlled by Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).  While acknowledging that the location of the speech can be relevant, the court stressed that U.S. Court of Appeals for the Ninth Circuit precedent, which is controlling in Oregon, holds that “off-campus speech is within the reach of school officials.”   “For off-campus speech, the test still remains whether school officials may forecast substantial disruption of or material interference with school activities or whether speech collides with the rights of other students to be secure and to be let alone in the school environment.”  The court also cited an Eighth Circuit decision that students may be suspended for off-campus sexually explicit and degrading comments about female classmates.   S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).

The court had little trouble upholding the school’s actions:

In this case, the district reasonably believed that bullying and harassment could lead to more problems and substantial disruptions.  In addition, it reasonably forecast that failure to discipline harassing behavior could create a climate welcoming to such behavior in school.  More importantly, the harassment itself, occurring just off school grounds where students regularly traverse en route to and from school, invades the rights of other students.

The court rejected C.R.’s argument that his conduct was not harassing, emphasizing that “no reasonable trier of fact could conclude” that ESD’s determination was unreasonable.  Citing Ninth Circuit precedent in Chandler v. McMinnville School Dist., 978 F.2d 524 (9th Cir. 1992), it stated: “Vulgar, lewd, obscene, indecent, and plainly offensive speech may well impinge upon the rights of other students, even if the speaker does not directly accost individual students with his remarks.”

C.R. v. Eugene Sch. Dist. 4J, No. 12-1042 (D. Ore. Sept. 12, 2013)

[Editor's Note: In July 2013. Legal Clips summarized a decision by a federal district court in Nevada in Rosario v. Clark Cnty. Sch. Dist. in which a former Nevada public school student filed a 10 count lawsuit in federal court against his school district claiming that discipline he received because of off-campus tweets violated numerous rights, including his First Amendment right of free speech. The school district filed a motion to dismiss arguing that the tweets were not entitled to First Amendment protection because they are obscene and that schools may regulate off-campus student speech that causes a substantial disruption on campus.

The court granted the school district’s motion to dismiss with regard to seven of the student’s claims, including his Fourth Amendment search claim, Fourteenth Amendment equal protection claim, and Fourteenth Amendment procedural due process claim.  The court denied the motion to dismiss with regard to other claims, most importantly the First Amendment claim.

The court acknowledged that while courts have found that school officials can discipline students for off-campus speech on social media websites, the ability of officials to impose punishment depends on the facts.  It also noted that the scope of the school district’s cyberbullying policy, which formed the basis for the student’s discipline, had not been interpreted under circumstances like those in the present case.  As a result, it concluded that the issue should be decided on the merits.  The court did agree that one of eight tweets was obscene as a matter of law and therefore not entitled to First Amendment protection.]

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