The Impact of Social Media on Wisconsin School Districts, Part 1: Social Media & Students

In this article, we focus on the impact student social media can have on a school district — which can sometimes be immense, as well as disruptive or even dangerous.

Understanding the complexities of when/how superintendents, teachers and administrators can and can not manage a student’s social media is a critical facet of keeping schools safe, and creating a successful environment for student learning.

In Part 1 of this series, we cover  the following topics:

• Student Speech
  
  • Including when a school district can regulate student speech on social
  • The “Supreme Court Trilogy” on student speech
  • Content and characteristics of “speech,” both protected and not protected
• Off-Campus Speech
  
  • Some general guidelines
  • And handling cyberbullying
• Wisconsin expulsion cases related to social media
• Legal considerations and strategies

Let’s begin …

Student Speech

1. When may a school district regulate student speech on social media?
   
   • A school district is a governmental body. As such, school districts must balance their ability to control the educational environment with students’ legitimate right to express their views.
   • Restrictions on speech can often be imposed to account for the time, place, and manner of the speech. 
   • Restrictions on speech may also be justified when the speech carries the imprimatur of the school district. 
2. The “Supreme Court Trilogy” on student speech:
   
   • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Expression is protected; just as speech is protected. Speech that materially disrupts classwork, involves substantial disorder, or invades the rights of others is not protected.
   • Bethel School District v. Fraser, 478 U.S. 67 (1986). Vulgar, lewd, obscene or offensive speech is not protected.
   • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). School-sponsored speech which relates to legitimate pedagogical concerns is not protected.
   • *Recent addition to the trilogy — Morse v. Frederick, 551 U.S. 393 (2007). Speech that promotes illegal conduct is not protected.
3. Content and characteristics of “speech”: protected and not protected
   
   • Does it relate to ideas, matters of public concern, and the like?
   • Does it offend policy (e.g., bullying, harassment, or discrimination)?
   • Is it sent or spoken on school grounds, school time, or while under supervision of school personnel?
   • Is the printed work directed at or meant to be consumed by an audience that is at school?
   • Is it foreseeable that the communication will be republished or circulated at school?
   • Is the speech illegal or does it encourage/endorse illegal conduct? 
   • Is the speech obscene?

Off-Campus Speech

1. In General. The majority of student social media use will occur off campus. 
   
   • Off-campus speech is protected by the First Amendment.
   • All other factors being equal, schools have relatively less ability to regulate off-campus speech. However, our Supreme Court has noted that certain types of off-campus speech might be deemed permissible for schools to regulate in the future, including speech:
     
     • Engaging in serious/severe bullying or harassment that targets particular individuals;
     • Threatening students or teachers;
     • Failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
     • Breaching school security devices, including material maintained within school computers.
2. Cyberbullying. Social media may also be used to engage in bullying.
   
   • Cyberbullying can originate off campus, but there must be a nexus with the campus for a school district to suspend or expel. 
   • Cyberbullying is a function of content/behavior and frequency, just as routine bullying is. However, the magnitude and proliferation of cyberbullying tactics may have different (and often more brutal) effects.
   • When investigating, remember that the bullying policy may also apply (deadlines, communications requirements, etc.).

   • In Doe v. Hopkinton Public Schools, 19 F.4th 493 (1st Cir. 2021), two students were suspended for bullying their teammate. The students had circulated images, videos, and demeaning and expletive-laced messages about their teammate through Snapchat.

     The students sued the District, alleging that the suspension violated their First Amendment rights of freedom of speech and association. The court held, in part, that the students’ speech and conduct — which encouraged direct bullying by others — was not protected under the First Amendment. Certain off-campus behavior warrants school regulation, namely “serious or severe bullying or harassment,” that invades the rights of others. Speech that constitutes, encourages, or contributes to bullying is not constitutionally protected. 

   • In Chen v. Albany Unified School District, 56 F.4th 708 (9th Cir. 2022), a group of high school students shared posts on a private Instagram account, which included “disturbing posts that targeted vicious invective with racist and violent themes against specific black classmates.”

     After the posts began to circulate among students at school, and multiple students became too upset to attend class, the students responsible for the account were expelled. The students sued, arguing that the District violated their free speech and due process rights.

     The Court concluded that the speech “bore a sufficient nexus” to the school and its students. The posts caused significant disruption at school, particularly with those students who were targeted in the posts. Although the creator of the account attempted to keep it private, it was reasonably foreseeable that the content would eventually reach the school. As a result, the District’s discipline did not violate the students’ free speech rights.

Wisconsin Expulsion Cases Related to Social Media

1. S.A. by the Chilton Public School District, Decision and Order No. 754 (January 2, 2018). DPI affirmed a school board’s decision to expel, based on a student’s threat on social media, to “shoot up the school.” 

   On review of the Hearing Record, a substantial amount of undisputed evidence indicates the pupil communicated via social media an intent to bring guns and shoot up the school.

2. E.B. by the Chilton Public School District, Decision and Order No. 750 (July 24, 2017). A student was expelled, in part, due to issuing a threat via social media. DPI affirmed the expulsion, concluding: 

   The hearing record contains a social media post of the pupil’s face with the caption, “Me wondering which gun would be the best for murdering the entire school.” While reasonable interpretations of this post may disagree whether the post communicates a threat or the degree of that threat, the photo and caption may reasonably be interpreted as a threat to the safety of District pupils and staff.

3. J.O. by the Oshkosh School District, Decision and Order No. 741 (Sept. 19, 2016). 

   DPI has noted that school officials’ feeling that a threat may exist is not sufficient reason to expel. School officials must find that a threat to endanger a person or property actually exists. 

   In J.O., a pupil was expelled primarily as the result of appearing in a Facebook post in which the pupil held an airsoft gun. The picture was captioned “some of you guys are okay; don’t come to school tomorrow.” DPI found that the hearing examiner “skipped the entire step of determining whether the pupil engaged in behavior that endangered the property, health or safety of others at school,” and that the school board “added nothing to address that aspect.” DPI overturned the expulsion, concluding:

   The statutory reasons for expulsion include an act or a threat of an act which endangers or threatens to endanger others. Testimony confirms that police and school officers did not find an act or threat of an act; they felt a threat might exist. This is not the same thing.

Legal Considerations and Strategies

1. Nexus to school or district. Our courts have demanded that school districts demonstrate how off-campus conduct is the school’s business. Establishing a nexus to the school is or, at least, seems likely to be increasingly important in free speech cases. 
   
   • Is off-campus speech directed at individuals, the school, or school officials?
   • Did a student use a school district device (or send to school district addresses/recipients) to access social media sites?
   • Did the social media activity take place during school hours?
   • Did the piece on social media mention the district or its school buildings, by name or implication?
   • Did the social media posting/messaging substantially disrupt the school environment?
2. Behavior clauses in co-curricular codes. Review athletic/extracurricular codes of conduct and district policies regulating off-campus speech in light of the Mahanoy decision. Traditionally, alcohol, other drugs, and tobacco were prohibited, and additional prohibitions varied from district to district. 
   
   • Scope of “free speech” rights. While Mahanoy was unsettling to many, the decision is not without limits. The Court was asked whether a student’s First Amendment rights could be restricted by a co-curricular code and, if so, to what degree. The Court concluded that they could not in circumstances where a student’s off-campus, profane rant posted on social media (messaging) did not meet the standards the Court has established, when applied in a co-curricular context.                     
     
     Thus, speech and expression are protected, but conduct prohibited by a co-curricular code is not necessarily equally protected, unless the conduct itself rises to the level of Constitutionally protected expression.
   • Off-campus conduct. Regulating private, personal conduct that is outside the school day and off school grounds. If the District regulates such conduct: 
     
     • Determine whether speech or expression is involved. If so, the district will have to show that the speech or expression can be regulated because of its content (e.g., speech that includes a true threat) time, place, and/or manner, or, at the very least, that it is not protected speech.
     • Does the conduct offend or violate policy values that the district is trying to impart? For example, we know that school district policies and programs to promote wellness and discourage illegal drug use can be invoked to sanction speech (the “Bong Hits for Jesus” case).
     • Does the code regulate, e.g., dress choices in a way that (arguably) promotes traditional gender choices for off-duty attire? If so, be ready to demonstrate why this off-campus matter is a school district issue or why the matter in question is not really an off-campus issue because of its effect on the campus and those in it.
     • Find conduct unrelated to speech that is rational to prohibit or regulate.       
3. Prohibited Speech. Enforce discrimination, harassment, and bullying policies when speech creates a hostile educational environment.
   
   • On-campus use and contributions to social media are, of course, more easily regulated because, e.g., we have proof that the speech was sent to school, circulated there, or did, in fact become a source of disruption at school.              
     
     NOTE: Make sure that your policies on harassment, discrimination, and bullying make specific statements to the effect that the Board has evaluated the subject situation, and has concluded that the conduct identified is disruptive.              
      
   • All indications are that school districts can be more aggressive with regulating off-campus speech on social media that runs afoul of these policies; policies which themselves protect student rights.

This brings us to the end of Part 1 of the series. In Part 2, we dive into the impact of social media on Wisconsin school districts as it pertains to social media and employees.