A school district’s authority to discipline a student for off-campus speech is an increasingly relevant concern today for public schools. Inappropriate or offensive speech can cause lasting injury to victims and can trigger significant community backlash and unrest. The Ninth Circuit Court of Appeals recently addressed this issue in a case that arose out of Oregon.

The case was filed after a school district suspended a seventh-grade student named C.R. for harassing two other students from school. C.R. and some of his friends had been involved in an escalating series of encounters with two sixth-grade students, a girl and a boy, both disabled, first calling them vulgar names and later increasing to sexual taunting. On the day of the incident at issue, the students were traveling home from school through a public park adjacent to school property, just a few hundred feet from the campus. About five minutes after school let out, C.R. and his friends circled around the two younger students, commenting and questioning them about sexual acts and pornography. A school employee rode by the students on her bicycle, noticed the group, and stopped to help the younger girl and boy. The girl reported that the encounter made her feel unsafe, and the employee walked the two students home.

After investigating the incident, school administrators concluded that C.R. was the “ringleader” of the group and that the conduct fell within the district’s definition of sexual harassment. All of the boys were disciplined. C.R. was suspended for two days, not only because of the harassment but also because he had lied to administrators during the investigation and had disregarded their request to not discuss the interview with his friends.

C.R.’s parents filed a lawsuit a year after the incident, alleging that his First Amendment and due process rights had been violated and that the school lacked authority to discipline him. The school district moved for summary judgment, which was granted by the district court. The parents appealed the decision to the Ninth Circuit, which considered the following.

Was C.R.’s conduct sexual harassment? The school had a policy that defined sexual harassment, and the investigation had yielded evidence that C.R.’s behavior fit within that definition. The Ninth Circuit Court noted, “Federal courts owe significant deference to a school’s interpretation of its own rules and policies. … We uphold a school’s disciplinary determinations so long as the school’s interpretation of its rules and policies is reasonable, and there is evidence to support the charge.” Therefore, the court upheld the district’s conclusion that C.R.’s behavior was considered sexual harassment.

Could the school regulate his speech and discipline him? The court first considered whether the school could permissibly regulate the student’s off-campus speech at all, and then considered whether the school’s regulation of the student’s speech complied with the requirements of the First Amendment.

Regulation of students’ on-campus speech is well established as constitutional; however, regulation of off-campus speech is another matter. Following a previous Supreme Court decision (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), regulation of student speech is permissible if the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities” or if the speech might collide “with the rights of other students to be secure and to be let alone.” Speech that is merely offensive is not sufficient; however, sexually harassing speech is more than that. Sexually harassing speech, the court held, implicates other students’ rights to be secure, threatening their sense of physical, emotional, and psychological security.

The age of the student who is being harassed is also relevant. The Supreme Court has noted that children younger than age 14 are less mature, and therefore overtly sexual speech could be more seriously damaging to them. For this reason, elementary schools may exercise greater control over student speech than secondary schools.

The court held that the school district did indeed have the authority to discipline C.R. for his harassing speech, even if it was off campus, for a number of reasons:

  • All of the individuals involved were students
  • The incident took place –
    • On the students’ walk home
    • A few hundred feet from school
    • Immediately after school let out
    • On a path that begins at the school
  • The students were together on the path because of school

Succinctly stated, the court held that “a school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

Were C.R.’s due process rights violated? Again citing previous court decisions, the opinion noted that the Constitution allows informal procedures when a student suspension is 10 days or fewer. The school must provide the student notice of the charges but need not outline specific charges and their potential consequences or notify parents of the charges prior to the suspension. If the student denies the charges, the student then must have an opportunity to explain his side of the story. A school is not constitutionally required to inform the student of the specific rules or policies in question. For these reasons, the court held that the school did not violate C.R.’s procedural due process rights.

C.R. also claimed that his substantive due process rights were violated when the school recorded the reason for suspension as “harassment – sexual,” which allegedly deprived him of a good reputation. The court opined that C.R. did not have a genuine interest in maintaining a good reputation, as he had since stolen supplies from the school, and held that the school may record the reason for suspension, “however unsavory,” so long as it applied appropriate procedural safeguards. Therefore, the school also did not violate his substantive due process rights.

Ultimately, the Ninth Circuit upheld the summary judgment that the district court had previously granted.

C.R. v. Eugene School District 4J, No. 13-35856 (9th Cir. 2016)