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Can school districts impose discipline for out-of-school conduct?

In the recent case of Mahanoy Area School District v. B.L., the United States Supreme Court made three observations with respect to public schools imposing discipline arising out of off-campus speech or conduct:

  1. Schools will rarely stand in loco parentis with respect to off-campus speech. Off-campus speech generally falls within the zone of parental responsibility, not school responsibility.
  2. Regulation of off-campus speech means that a school is attempting to exercise authority over a student 24 hours a day. Courts will be more skeptical of a school's efforts to regulate off-campus speech.
  3. Schools have an interest in protecting a student's unpopular expression, especially when the expression takes place off-campus. According to the Mahoney opinion, "America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the 'market place of ideas'."

Recommendations:

  1. Unless the conduct involves academics, threats, or bullying and harassment, schools should not attempt to discipline students for conduct or speech that occurs off-campus.
  2. If the conduct involves academics, the school's conduct code applies.
  3. With respect to issues of threats or bullying and harassment, schools should examine carefully the extent to which the alleged threats or bullying and harassment impact the school environment. Public schools cannot protect all of their students 24 hours a day. If conduct or speech is truly criminal in nature, the issue should be handled by law enforcement authorities. If the issue is not substantially severe enough to constitute criminal conduct, a public school should weigh carefully whether it has a sufficient interest in which to impose discipline.

 

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