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  • Writer's pictureRobert Lusk

Sixth Circuit Addresses Off-Campus Student Speech

Student social media use and misuse raise questions of when and under what circumstances a public school can discipline students for off-campus speech. The US Supreme Court addressed the issue two year ago in Mahanoy Area Sch Dist v B. L., 141 SCt 2038 (2021). The Sixth Circuit very recently addressed the same issue in a case out of Michigan, Kutchinski v Freeland Cmty Sch Dist, Case No. 22-1748 (June 1, 2023).

Educators will find the facts familiar. The student created a fake Instagram account impersonating a teacher. The Court characterized the student’s posts as “benign.” However, the account “became graphic, harassing, and threatening when two of Jason’s friends added their own posts.” News of the account spread quickly and the student permitted others to follow. Without question, the posts added by the student’s friends would have subjected the student to discipline if he had published or re-published them in school. And to his credit, the student concluded the account was out of control and closed it, but not before it came to the attention of school officials. Initially, the student was suspended for five days and, after a hearing, a ten-day suspension was imposed for violating the school district’s rule against “gross misbehavior.” In response, the student sued, claiming the school district had violated his constitutional rights by punishing him for his friends exercise of their First Amendment rights outside of school based on an unconstitutionally vague rule against “gross misbehavior.”

The Sixth Circuit posited the US Supreme Court had already established school districts had authority to punish “some” off-campus speech if it materially disrupted classwork, involved substantial disorder, or invaded the rights of others. The Court then turned to the question of whether the student could be disciplined based on his friends’ inappropriate additions to his account. The Court held the student could be disciplined because he had “contributed” to his friend’s posts by granting them access to his account, joking with them about the clearly inappropriate posts, and accepting followers. In the process of reaching this conclusion, the Court swept aside arguments that such vicarious liability violated Section 230 of the Communications Decency Act or the student’s First Amendment right to freedom of association. The Court also concluded the school district reasonably forecasted material disruption to the school environment based on the account’s content and added it “could” be argued actual disruption occurred based on testimony that one of the targeted teachers broke down in tears. Finally, the Court concluded that punishing the student under a rule that simply prohibited “gross misbehavior” was not unconstitutional.

The Kutchinski decision will be welcomed by many public-school teachers, administrators, and Board members, who, quite properly, object to being publicly abused by their students. However, Kutchinski leaves open certain line-drawing questions about the scope of public school authority in social media cases


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