Indiana legislature considers proposal that would allow schools to discipline students for off-campus behavior, including online speech
A bill that would allow schools to punish students for off-campus actions was approved by the Indiana House of Representatives in January 2012 and is sitting in a Senate committee, says Student Press Law Center. According to state Rep. Eric Koch, House Bill (HB) 1169 is an attempt to deal with growing issues like cyberbullying and cheating.
Under existing Indiana law, students may be punished for “unlawful activity” if the activity is reasonably deemed to cause “interference with school purposes or educational function.” It does not matter if the activity occurred on or off school grounds or if it happened when school is not in session. Koch’s bill would remove the word “unlawful” and allow punishment of any off-campus activity that interferes with the school.
Ken Falk, legal director at the American Civil Liberties Union of Indiana (ACLU-IN), expressed concern abut the bill. “From a First Amendment perspective,” Falk said, “if the student engages in lawful activity off of school grounds, there’s a very high standard that has to be applied before that can somehow lead to discipline.”
HB 1169 has the support of the Indiana School Boards Association. In regard to whether the bill could potentially infringe First Amendment rights, Koch referred to Kowalski v. Berkeley County Schools, a federal appeals court decision from July 2011. The opinion in Kowalski allowed a school to punish “disruptive” off-campus speech.
Falk said he has concerns over the need for a cheating and cyberbullying law at all. He said cheating should indeed be punished, but not through state law. As for cyberbullying, he said it should only be punished in cases where there is an imminent threat of violence. If a student is a member of a gay rights group off campus, Falk said as an example, that student potentially could be punished if other students “take umbrage” with it. “Clearly that cannot be deemed to be a disruption that interferes with school purposes,” Falk said, “when everything that student has done is off school grounds.”
Koch insisted that limiting student speech is not the intent of the bill. “I wouldn’t knowingly promote anything that would infringe First Amendment rights,” Koch said.
Frank LoMonte, executive director of the Student Press Law Center, said other states could soon see similar bills replicated in their legislatures. “This could be like a bad cold that gets passed from state to state.” LoMonte said even if the Kowalski case applied in Indiana, the bill would “lower the bar” to any and all off-campus speech — which could result in schools using it for “image control.” He said the Kowalski court found that cyberbullying can be punished without additional state law.
Source: Student Press Law Center, 2/7/12, By Nick Glunt
[Editor's Note: Kowalski, decided by the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) was one of a trio of off-campus, online student speech cases that the U.S. Supreme Court recently declined to review. In January 2012, Legal Clips summarized reports from a number of national news outlets reporting on the U.S. Supreme Court's denial of certiorari in Kowalski and two U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) cases.
The three-judge panel decision in Kowalski held that the language of Tinker v. Des Moines Ind. Comm. Sch. Dist. (1969) supports the conclusion that public 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. The panel determined that it was reasonably foreseeable that the speech would reach the school, so it was “satisfied that the nexus of Kowalski’s speech to [the school]‘s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.”
The two other cases in which the Supreme Court denied review involved a student who had been disciplined for creating an offensive parody MySpace profile of his/her principal off-campus. In J.S. v. Blue Mountain Sch. Dist., the Third Circuit assumed without holding that the substantial disruption standard set out in Tinker applied, and determined that the school district had failed to demonstrate a reasonable forecast of disruption. The student’s suspension, therefore, did not pass constitutional muster. The court went on to say that the Supreme Court’s 1986 decision in Bethel v. Fraser, holding that a public school may discipline a student for on-campus offensively lewd and indecent speech under the First Amendment, does not apply to student speech that occurs off-campus.
In Layshock v. Hermitage Sch. Dist., where the school district had abandoned its Tinker substantial disruption argument, the Third Circuit determined that the district had violated the student’s free speech rights because it had not established a sufficient nexus to the school. Nor could the district show that the speech had occurred on-campus so that it could be regulated under Fraser’s “lewd/vulgar” standard.
In a press release announcing Rep. Koch’s introduction of HB 1169 in the Indiana House, Frank Bush, ISBA’s Executive Director speaking in support of the bill, said, “It will be helpful as school officials assess a student’s conduct during and after school hours.” He added, “It offers clarity for school disciplinary actions.”]