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Schools Can Punish Students for Off-Campus Speech

By Stephanie Rabiner, Esq. on April 25, 2011 | Last updated on March 21, 2019

In 2007, school administrators barred Avery Doninger from running for senior class secretary after it came to their attention that she had called school staff "douche bags" in a blog post made from her home computer.

The 2nd Circuit ruled Monday that the school was within its rights, as current student free speech jurisprudence does not clearly establish that it violated Doninger's First Amendment rights.

Upset that a scheduling mix-up required the postponement of the school's annual battle of the bands, Avery Doninger sent an email to the school's parents and students asking them to complain to the principal and superintendant.

Doninger, while at home, then published a blog post calling administrators "douche bags" and urging students to further "piss off" the superintendant.

When confronted with the blog post, Avery Doninger refused to withdraw from the senior class election, so the principal did so for her.

It's been established for quite some time that student free speech rights are limited, as school administrators must ensure the safety of all students and are tasked with teaching "socially appropriate behavior."

While the Supreme Court has not spoken on the issue of a school's authority to regulate out-of-school speech, it has said that schools may limit speech that may "materially and substantially disrupt the work and discipline of the school."

The 2nd Circuit acknowledged that, while Doninger's blog post was written outside of the school, it was reasonably foreseeable that its content would disrupt campus. It further stated that at no point has it, or the Supreme Court, concluded that off-campus speech that disrupts in-school proceedings is protected by the First Amendment.

This decision is important for its potential impact on schools' ability to punish students for off-campus bullying that impacts on-campus student behavior. It essentially dictates that, until there is a clear decision by the Supreme Court, schools in the 2nd Circuit may punish off-campus bullies.

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