Legal Question of the Week – 3/28/14

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagatcasciacdotorg. _________________________________________________________________________________________


Dear Legal Mailbag:

One of the students at the high school has never been on a sports team in his life, but team spirit runs through his body. Unfortunately, his team spirit is out of control, and he has been a one-man wrecking crew on the Internet. He insults coaches from other schools with spectacularly vulgar language, and he taunts players on opposing teams with inflammatory posts. Yesterday, however, he may have crossed the line. He posted a challenge on Facebook to the fans from the other school: “Parking Lot E: An hour before the game. Be there or be the cowards you are. We will see which fans are the toughest.” Can I discipline this student? Can I ban him from the game, including Parking Lot E, which is at the other school?

Had Enough

Dear Enough:

Students have a right of free speech, as you well remember from the Tinker case. That even includes rabid fans. However, the right of free speech is not unlimited. Here, I believe that you can discipline this young fan for two reasons.

First, the free speech rights of students are not unlimited. In Tinker, the United States Supreme Court ruled that school officials may regulate student speech if they reasonably forecast substantial disruption or material interference with the educational process. Significantly, school officials do not have to wait for students to fight. Rather, they may determine that speech will likely cause disruption and act on that speech. Here, it is certainly reasonable to forecast disruption resulting from the student’s challenging rival fans to come to a specific location to see which fans are the “toughest.”

Second, you still have jurisdiction over this off-campus post. School officials can discipline for off-campus conduct if it violates school rules and is seriously disruptive of the educational process. The statutes go on to describe the factors that we should use in deciding whether off-campus conduct is disruptive: “(A) Whether the incident occurred within close proximity of a school; (B) whether other students from the school were involved or whether there was any gang involvement; (C) whether the conduct involved violence, threats of violence or the unlawful use of a weapon, as defined in section 29-38, and whether any injuries occurred; and (D) whether the conduct involved the use of alcohol.” Clearly, this challenge would involve proximity to a school, other students and threats of violence. Accordingly, you may discipline the student.

Finally, you may ban the student from the other school around the time of the away game. School officials have jurisdiction and control over students when they are on campus and when they are at school-sponsored events. The away game is of course school-sponsored. Therefore, you can tell the student he cannot go to the game. If he does go to the game despite your directive, he will be insubordinate and subject to discipline.