School districts around the country continue to struggle with how to balance the First Amendment rights of students with efforts to stop online harassment and bullying. A recent New Jersey case is the latest example.
The Sayreville, New Jersey Board of Education adopted a harassment, intimidation and bullying (HIB) policy that provides that it "shall be exercised only when it is reasonably necessary for the student's physical or emotional safety, security and well-being or for reasons relating to the safety, security and well-being of other students, staff or school grounds." The Board Policy regulates conduct "off school grounds, in accordance with law, that substantially disrupts or interferes with the orderly operation of the school or the rights of other students."
On Saturday, February 11, 2017, a student identified in the lawsuit as A.H., then an eighth-grade student at Sayreville Middle School, posted a screenshot of a friend with a cosmetic mud mask on her face with the caption "when he says he's only into black girls" on her Instagram account. A.H. did not create the photo or draft the caption. A.H. added her own comment to the post that stated, "Ha, ha, ha! Love her – [laughing face], [laughing face]." A.H. posted the screenshot from her personal phone while she was at home, on an internet network and social media account unaffiliated with the Sayreville school system. A.H.'s friend in the post did not attend school in Sayreville.
On February 16, 2017, the Board received complaints regarding A.H.'s Instagram post. According to A.H., however, "[t]here were no altercations at Sayreville Middle School as a result of the post, no classes were canceled, and there was no need for an assembly to discuss the racial issues at the school." In response to the complaints, the Board launched a HIB investigation. As a result, A.H. received a one-day suspension from school, was removed from the Student Council, prevented from attending a special trip for members of the Student Council, removed from the role of making the morning announcements at her school, and prohibited from attending a school assembly. A.H. and her parents then filed a federal lawsuit, contending that the school violated A.H.'s First Amendment rights.
Relying on a recent United States Supreme Court decision, the New Jersey federal court noted three features of off campus speech that distinguish it from on campus speech. First, "off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, "from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day," and "[t]hat means courts must be more skeptical of a school's efforts to regulate off campus speech." Third, because "America's public schools are the nurseries of democracy," "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus."
The federal court also noted the features of the speech at issue in the case before it, noting "[t]he Instagram post included a screenshot of A.H.'s friend with a cosmetic mud mask on her face with the caption 'when he says he's only into black girls,' and the additional comment, made by A.H. herself, stating, 'Ha, ha, Ha! Love her – [laughing face], [laughing face].' The post, while racially insensitive, did not amount to fighting words or obscenity. Rather, the post itself indicates that it was intended to be satirical (regardless of its satirical value), and, therefore, was the 'kind of pure speech to which, were [A.H.] an adult, the First Amendment would provide strong protection.' Further, A.H.'s Instagram post 'appeared outside of school hours from a location outside the school'; '[s]he did not identify the school in her post[] or target any member of the school community with vulgar or abusive language'; and A.H. 'transmitted her speech through a personal cellphone' on her personal Instagram account to her friends and followers. 'These features of her speech, while risking transmission to the school itself, nonetheless . . . diminish the school's interest in punishing [A.H.'s] utterance.'"
All these factors led the court to dismiss the School Board's motion to dismiss and allow the case to proceed. The underlying issues, though, will no doubt reoccur. There's just no simple solution.
