6th Circuit Clarifies Rules for Disciplining Students for Off-Campus Speech and Conduct

On June 2, the 6^th Circuit Court of Appeals – the federal appellate court whose rulings are applicable in Michigan – issued a decision that clarifies the circumstances under which a school district may discipline a student for off-campus behavior and particularly off-campus speech. Many districts have confronted this issue, and this decision provides more certainty about a district’s prerogatives.

In Kutchinski v Freeland Community School District, arising from the Freeland District in Saginaw County, a high school student created a fake Instagram account impersonating one of his teachers. At first benign, the account became “graphic, harassing and threatening” when he allowed two friends to log on, and the friends added posts commenting on the supposed sexual habits of the teacher and abusive comments supposedly from teachers and about other teachers and a student. The friends tagged the teachers and allowed a number of students to follow the account. More students became aware of the account, which became a major topic of discussion at school. Teachers complained about classroom disruptions. After less than three full days, the account was deleted. The student who created the account was given a 10-day suspension, and his parents sued, claiming First Amendment violations.

The District Court in Detroit dismissed the case, and the plaintiffs appealed. The 6^th Circuit reviewed the law, including Supreme Court decisions in Tinker v Des Moines Independent Community School District in 1969 and Mahonoy Area School District v B.L. ex rel Levy in 2021. From these, the Court observed that schools may regulate off-campus speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” In this case, the Court held that the student’s speech “involves serious or severe harassment of three teachers and a Freeland student.” The Court also recognized that the requirement of substantial disruption of the educational environment does not mean that the school must wait until the disruption has occurred. Rather, the standard is whether the school could “reasonably forecast that the posts . . . would cause material and substantial disruption to schoolwork and school discipline.” According to the Court, the District “reasonably forecasted that a fake Instagram account that impersonated a Freeland teacher and directed sexual and violent posts at three Freeland teachers and a student would substantially disrupt normal school proceedings.”

The student who created the account claimed he should not be disciplined since the offending posts were created by his two friends, to whom he provided log-on information. The Court rejected this argument, holding that “when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech,” and can be disciplined for it. Having created the account, the student was subject to discipline.

Finally, the student who created the account was disciplined under a school rule that permitted discipline for “gross misbehavior, persistent disobedience or having habits detrimental to the school.” The student challenged this rule as unconstitutionally vague, arguing that it did not give him notice of what conduct was prohibited. The Court held otherwise, observing first that “given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.” In this case, the Court considered dictionary definitions of “misbehavior” as “improper conduct,” and “gross” as “flagrant and glaring,” and decided that the student’s conduct in this case “fits the bill” as gross misconduct. The suspension was thus upheld.

Schools and districts obviously cannot reasonably regulate all conduct of their students on a 24-hour, 7-day-a-week, 52-week-a-year basis. This case, however, reinforces the logical conclusion that schools and districts may regulate student speech that causes or can reasonably be forecast to cause substantial disruption to the educational environment. It also clarifies that codes of conduct need not be so precise as to anticipate all possible student misbehavior, recognizing that students quite regularly find new and more creative ways to get into trouble.

If you have questions about this or other issues, please contact Mark McInerney at mmcinerney@clarkhill.com or (313) 965-8383, or another member of Clark Hill’s Education Law Practice Group.