Amanda Bigbee
Division Director, Policy Services, Texas Association of School Boards
ISSUE 14 | FALL 2023 | CIVIL RIGHTS |
When a parent sends their child to school, there is an expectation that the child will be educated and kept safe. Part of maintaining an environment for safe learning is discipline when students make poor decisions. But where does the school’s power to discipline begin and end? Does a school have the authority to punish behavior that occurs in the evening in the child’s home? What about a profanity-laced Snap from the corner convenience store on the weekend? Drawing that line is tricky business in today’s media-saturated world.
I. The U.S. Constitution and Parent Expectations
It is important to first understand that public schools and private schools are not cut from the same constitutional cloth. Public schools, including traditional school districts and charter schools, are governmental entities and, as such, must comply with constitutional provisions like the First Amendment right to free speech and the right to freely exercise one’s religion.¹ Private schools, on the other hand, are not governmental entities and may function outside of those constitutional restrictions.² A private Catholic school, for example, may require students to attend a daily mass but a public school could not.
When student activities are viewed through the lens of the U.S. Constitution, there can be a significant difference between speech and behavior. A student’s Instagram post will likely see constitutional protection³, but drinking in a cheerleading uniform may not.⁴ A student handing out flyers for a political action rally during lunch is an activity the Constitution likely protects, but pulling the fire alarm as a prank during that same lunch period is not.⁵ That distinction is important when analyzing discipline for both on-campus and off-campus student conduct.
Schools function in loco parentis, which means “in the place of the parent,” in Latin.⁶ Most parents would agree that a child who cusses at them should have consequences for that behavior at home. Likewise, when a student uses profanity with a teacher, the school will issue discipline for that behavior. There is not generally an expectation that the student’s parents consent to that discipline or even be informed before the school issues the consequence. When the school acts in place of the parent, it must take reasonable steps to maintain a safe school environment conducive to learning. The real crux of the issues is when and where does that discipline line begin and end?
II. Behavior
Texas law mandates that some student behaviors that occur on or within 300 feet of the campus or at an off-campus school activity or event are subject to discipline.⁷ Under Texas Education Code section 37.006(a), conduct punishable as a felony, possessing a vape, and selling a dangerous drug or alcohol are examples of behaviors that require removal from class and placement in a disciplinary alternative education program.⁸ 300 feet from the campus is “measured from any point on the school's real property boundary line.”⁹
Other student behaviors that occur on campus or at school related events or activities require the school to expel the student. Under Texas Education Code section 37.007, if a student engages in conduct that contains the elements of crimes like murder, aggravated assault, arson, or indecency with a child, that student must be expelled from school.¹⁰
Things get a little trickier at the bus stop. School bus stops are generally out in neighborhoods and not at or within 300 feet of a school campus. Is standing at the school bus stop a school-related activity? Does the school’s reach go all the way to a neighborhood corner? Schools will not generally discipline behavior that occurs before a student steps on the school bus unless the behavior causes a disruption to the school environment.¹¹ The school’s responsibility to provide a safe learning environment typically begins when a student is within its control or when the behavior disrupts school.¹² A fight on the bus will land a student in the principal’s office¹³, but a fight at the bus stop may mean a call to the police, a parent, or no consequence at all aside from the bloody lip or hurt pride.
Parents of students in athletics or fine arts activities are accustomed to receiving an additional code of conduct that outlines behaviors a specific program, like cheerleading, finds unacceptable. It is very common for those extracurricular codes of conduct to warn students against things like drinking, smoking, or engaging in criminal behavior even when the student is not at school or a school related activity.¹⁴ Extracurricular activities are by their very nature “extra” and can have extra rules that don’t apply to the rest of the student population.¹⁵ Recently the United States Supreme Court grappled with whether or not those extra rules can also apply to off-campus speech, but we’ll get to that in a moment.
When analyzing student behavior, it’s important to consider not only what the behavior is but where it occurred. Behavior on district property or at a school-sponsored event are squarely within the school’s responsibility to manage and discipline.¹⁶ In some instances, the responsibility to discipline extends out beyond the school fence up to 300 feet.¹⁷ Once a student’s behavior takes place outside of that 300-foot perimeter, it is usually up to parents and police to handle unless the student is also managed by an extracurricular code of conduct or that behavior has a close nexus to the school community.¹⁸
III. Speech
Tinker
In the modern digital era, student misbehavior is often in the form of text messages and memes rather than fist fights and smoking in the bathroom. To understand student free speech rights, we have to venture back to 1965. President Johnson had started a long and difficult bombing campaign in North Vietnam and quickly pushed more American soldiers into South Vietnam.¹⁹ By April of that year, Students for a Democratic Society organized a march in Washington, D.C. that saw around 15,000 to 25,000 people protest, many of whom were college students.²⁰ By December 1965 the protest energy had reached middle and high schools. A group of students in Des Moines, Iowa met and decided to wear black armbands from December 16 to New Year’s in silent protest of the Vietnam War.²¹ Each student who wore the armband and refused to remove it was suspended from school.²² The lawsuit that followed set the framework for student rights and remains important to this day.
The school argued that wearing armbands to school could be disruptive to learning, and the school had an important responsibility to maintain order in that learning environment.²³ While lower courts agreed with that reasoning, the U.S. Supreme Court carved a new path.²⁴ The Tinker case famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”²⁵ The wearing of armbands was considered speech, not behavior, because the students were clearly relaying a message relating to the Vietnam War.²⁶ Because this protest was “pure speech” the Court held that a student’s speech must “materially and substantially interfere” with school operations before the school could discipline the students for the speech.²⁷ The Court reasoned that in this case the school merely anticipated and feared a disruption, but there was no actual interference with the school’s ability to maintain order and operate.²⁸ When analyzing student behavior and speech, schools today still take into account whether or not the speech caused a serious disruption to the functioning of the campus before determining whether or not to assign consequences.
Fraser
Let’s leap forward to 1986 when the United States Supreme Court considered a speech given during a high school assembly when a young man stood before his peers to nominate a fellow student for a class elected position.²⁹ These words led the administration to suspend the student for two days:
I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president—he'll never come between us and the best our school can be.³⁰
The Court in Fraser considered whether or not to apply the Tinker disruption test discussed above, but ultimately decided that schools have a compelling reason to prohibit vulgar and lewd speech because there are "fundamental values of public school education” that should be maintained even if there is no substantial disruption.³¹ The question schools now must grapple with is what is considered “vulgar and lewd” in today’s communities. If the school determines that a student’s on-campus speech is vulgar or lewd, it may discipline the student even if there is no substantial disruption to the learning environment.
Bong Hits 4 Jesus
We take another roughly 20-year jump to 2007 for the Supreme Court’s next venture into student speech and discipline. This time we visit the Last Frontier of Alaska for Morse v. Frederick, which is amusingly often referred to as the “Bong Hits 4 Jesus” case.³² A high school student in Alaska, at a school event, displayed a banner reading “BONG HITS 4 JESUS.”³³ No disruption to the school environment occurred, but the principal was less than pleased and suspended the student for ten days for promoting illegal drug use.³⁴
In a 5-4 decision, the Supreme Court opined that the banner could reasonably be construed as encouraging illegal drug use even if it was admittedly a cryptic message.³⁵ The Supreme Court concluded that preventing the use of drugs by school children is an important, “indeed, perhaps compelling,” interest.³⁶ The student’s discipline was upheld, and schools now know that they can discipline behavior that could be considered encouraging of drug use.³⁷
Ponce
The Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, waded into the arena of violence in schools later that same year when it decided Ponce v. Socorro Independent School District.³⁸ A student in Texas kept a diary at home and wrote stories of neo-Nazi groups across the school district committing acts of violence against homosexual and racial minority students as well as mass shootings the student described as “Columbine shootings.”³⁹ The student mentioned the diary to a friend who reported it to a teacher who in turn reported it to an assistant principal.⁴⁰ When questioned about it the student claimed that the writing was a work of fiction.⁴¹ After carefully reviewing the diary, the assistant principal was concerned for the safety of the students and staff and decided to suspend the student and recommend he attend school at an alternative disciplinary placement.⁴²
The student sued and claimed that his fictional writing was protected by the First Amendment and could not be the basis of disciplinary action by the school.⁴³ The Fifth Circuit Court analyzed the very recent “Bong Hits 4 Jesus” case when coming to the decision that speech is not protected by the First Amendment if it “poses a direct threat to the physical safety of the school population.”⁴⁴ The Court recognized that school administrators have to take threats seriously to ensure they do not miss warning signs that could result in tragic loss of lives.⁴⁵ Campus administration must be allowed “to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance.”⁴⁶
Bell
Teenagers in today’s world have the ability to create content and post it on the internet with their phones anywhere in the world. When those postings happen outside of school, but are about school, does the school have the responsibility or even authority to discipline the behavior? This was the question the Fifth Circuit tackled in 2015 when a high school student from Mississippi recorded a rap song and posted it to Facebook and YouTube from home.⁴⁷ The song was about the alleged sexually inappropriate behavior of two staff coaches with students at the school.⁴⁸ Some of the lyrics include:
Looking down girls' shirts / drool running down your mouth / messing with the wrong one / going to get a pistol down your mouth.⁴⁹
The song’s refrain tells students they should extend their “middle fingers up if you hate that nigga / middle fingers up if you can't stand that nigga / middle fingers up if you want to cap that nigga.”⁵⁰
In Bell v. Itawamba County School Board, the Court ultimately decided that the song Bell posted was “threatening, intimidating, and harassing” and, as such, was the basis of a reasonable anticipation of a substantial disruption under Tinker. It was relevant in the Court’s reasoning that Bell intended for his song to be heard by the school community.⁵¹ While his speech did not take place originally within the school setting, the speech was directed at the school.⁵² That nexus was relevant in the opinion that the school was within its constitutional rights to punish the off-campus speech.⁵³
Mahanoy
B.L. was a student at Mahanoy Area High School when she tried out for varsity cheerleading.⁵⁴ She did not make varsity but was placed on the junior varsity team.⁵⁵ The next weekend, B.L. was at a local convenience store with a friend and took to Snapchat to express her displeasure at this turn of events, as teenagers tend to do.⁵⁶ B.L. took the Snap of her and her friend with middle fingers raised and captioned the photo with “Fuck school fuck softball fuck cheer fuck everything.”⁵⁷ The Snap was seen by about 250 people, including many students from the school and several other cheerleaders. Students reported the Snap to the cheerleading coaches, who believed the expression to be a violation of the team and school rules.⁵⁸ The consequence for the off-school speech was a one-year suspension from the junior varsity cheerleading team.⁵⁹
The Supreme Court dug into the analysis of when off-campus speech can be disciplined by a school system, and landed on three features of speech that must be considered when determining whether the First Amendment protects the speech:
Off-campus speech is generally for parents to discipline, not schools;
If schools have the power to control speech off campus and on campus, students effectively have no venue in which they can engage in free expression; and
Schools have an interest in allowing students to express themselves somewhere since a free society where ideas can be shared is a basic tenet of our democracy.⁶⁰
In Mahanoy Area School District v. B.L, the Court decided that the convenience store Snap was not for the school to manage but was, instead, for the parents to control.⁶¹ Even with additional extracurricular expectations, the student was entitled to some space to express her displeasure with her cheerleading fate.⁶² The Court did leave space for schools to regulate off-campus speech when that speech constitutes serious bullying or harassment targeted to individuals in the school community, threats to students or staff, when there is a breach to a school security device, and when the speech is directly related to a school lesson or device.⁶³
Mahanoy is important case law for the school community because it is the first time since Tinker that the Court expanded rather than constricted student speech rights. The Court has told schools across the nation that its reach to discipline student expression is not indefinite, even when the student is talking about the school in vulgar terms that administration and cheerleading coaches find distasteful.
IV. Where is the Line?
After the legislature has made its rules, and the courts have given their opinions, where is this discipline line between home and school? If the student is on school grounds or at a school event, the ability to discipline lands squarely on the school’s shoulder.⁶⁴ Some behaviors that occur off school property but still within 300 feet of the property are also still within the purview of the school and can be punished.⁶⁵ Off-campus behavior is generally not punishable by a school unless the behavior has a close nexus to the school.⁶⁶ Once that nexus is established the school must determine if the behavior constitutes constitutionally protected speech before it can determine if it can discipline the student.⁶⁷
At the end of the day, it takes a village to raise a child. Students are best served when the school and parents work together to help students learn acceptable behavior and lessons that are needed to be productive members of society. If you have questions about the discipline processes at your own child’s school, refer to the Student Code of Conduct and contact the campus administration with any questions.
Suggested Citation: Amanda Bigbee, When and Where Does School Discipline Begin and End?, ACCESSIBLE LAW, Fall 2023, at 1.
Sources:
[1] See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted.”).
[2] Private schools are not government-run, and, thus, are not subject to the First Amendment’s demands. U.S. Const. art. 1; see Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2050 (2021) (Alito, J., concurring) (noting that had a student been at a private school, there would be no legal basis to punish the student’s speech).
[3] See generally Mahanoy, 141 S. Ct. at 2038.
[4] See generally Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).
[5] See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
[6] See, e.g., Vernonia, 515 U.S. at 654 (“When parents place minor children in . . . schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them.”).
[7] See generally Tex. Educ. Code Ann. § 37.
[8] See Tex. Educ. Code Ann. § 37.006(a).
[9] See Id. at § 37.006(a)(2).
[10] See Id. at § 37.007.
[11] See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (holding that school regulations may violate students’ constitutional rights unless “justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.”).
[12] Id.
[13] Tex. Educ. Code Ann. § 37.0022.
[14] It should be noted, however, that some courts are reining in the extent to which schools can police behavior that is not school-related. See, e.g., G.D.M. v. Bd. of Educ. of the Ramapo Indian Hills Reg’l High Sch. Dist., 427 N.J. Super. 246 (App. Div. 2012).
[15] See, e.g., Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 838 (2002) (holding that schools may require students involved in extracurricular activities to submit to drug-testing).
[16] See generally Tex. Educ. Code Ann. § 37.
[17] Id.
[18] See, e.g., Earls, 536 U.S. at 838; Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 395 (5th Cir. 2015).
[19] Resistance and Revolution: The Anti-Vietnam War Movement At The University of Michigan, 1965–1972, University of Michigan, https://michiganintheworld.history.lsa.umich.edu/antivietnamwar/exhibits/show/exhibit/the_teach_ins/national_teach_in_1965 (last visited Oct. 3, 2023).
[20] Id.
[21] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).
[22] Id.
[23] Id. at 505.
[24] Id.
[25] Id. at 506.
[26] Id. at 505–06.
[27] Id. at 505.
[28] Id. at 514.
[29] See generally Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
[30] Id. at 687 (Brennan, J., concurring).
[31] Id. at 685.
[32] See generally Morse v. Frederick, 551 U.S. 393 (2007).
[33] Id. at 397.
[34] Id. at 397–98.
[35] Id. at 401.
[36] Id. at 407.
[37] Id. at 410.
[38] Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007).
[39] Id. at 766.
[40] Id.
[41] Id.
[42] Id. at 767.
[43] Id.
[44] Id. at 770–71.
[45] Id.
[46] Id. at 772.
[47] See generally Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015).
[48] Id. at 384.
[49] Id.
[50] Id.
[51] Id. at 396.
[52] Id.
[53] Id. at 397–98.
[54] Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2043 (2021).
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id. at 2046.
[61] Id. at 2047.
[62] Id.
[63] Id. at 2045.
[64] It should be noted, though, that when I was in grade school and got in trouble at school, I was also in trouble at home. The law does not protect children from “double jeopardy,” so a consequence at school in no way limits a parent’s ability to dish out consequences at home as well.
[65] See generally Tex. Educ. Code Ann. § 37.
[66] See, e.g., Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 838 (2002); Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 395 (5th Cir. 2015).
[67] See Mahanoy, 141 S. Ct. at 2046.
