The Omnipotent School Administrator: Seeking to Curb Restriction of Off-campus Student Speech in the Wake of C.r. v. Eugene School District 4j

• Jurisdiction: United States,Federal
• Citation: Vol. 97
• Publication year: 2021

97 Nebraska L. Rev. 258. The Omnipotent School Administrator: Seeking to Curb Restriction of Off-Campus Student Speech in the Wake of C.R. v. Eugene School District 4J

The Omnipotent School Administrator: Seeking to Curb Restriction of Off-Campus Student Speech in the Wake of C.R. v. Eugene School District 4J(fn*)

Nicholas McGrath

TABLE OF CONTENTS

I. Introduction .......................................... 259

II. Background ........................................... 261
A. The Supreme Court's Student Speech Jurisprudence ..................................... 261
B. Circuits Struggle to Define the Limits of Tinker .... 266
1. The Eighth Circuit's Approach: Reasonable Foreseeability the Speech Will Reach the School ......................................... 266
2. The Fourth Circuit's Approach: The Nexus Test ........................................... 268
C. The Ninth Circuit Tackles Off-Campus Student Speech: C.R. v. Eugene School District 4J .......... 269
1. Facts .......................................... 269
2. The Court's Justification for Applying Tinker to C.R.'s Speech .................................. 270

III. Analysis .............................................. 272
A. Tinker Should Be Applied Off-Campus Under Certain Circumstances ............................ 272
B. Criticisms of the Ninth Circuit's Approach to Off-Campus Speech ................................... 273

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1. The Nexus Test Is Unclear and the Factors for Reviewing Courts to Consider Have Not Been Adequately Articulated ........................ 274
2. The Reasonably Foreseeable Test Provides No Additional Protection for Off-Campus Speech ...274
3. Policy Implications from the C.R. Decision ..... 276
C. Proposed Threshold Test: The Availment Standard . 277
1. The Availment Test Is a Stronger Legal Standard than Other Proposed Threshold Tests............................................... 279
2. Applying the Availment Test ................... 280
a. Cyber Bullying ............................. 280
b. Political Speech ............................ 281
c. Threats of School Violence ................. 282
d. Application to C.R .......................... 283
3. Potential Criticisms of the Availment Test ..... 283

IV. Conclusion ............................................ 284

I. INTRODUCTION

The First Amendment of the Constitution grants broad protection of free speech and expression for citizens of the United States.(fn1) This right, when exercised by a citizen, is subject only to a handful of articulated limitations based on the content of the speech.(fn2) However, this quintessential right is altered and subject to greater limitation when the speech at issue has not been delivered by an individual acting in his or her capacity as a citizen, but as a student.(fn3) The altered First Amendment standard for student speech seeks to provide school administrators(fn4) and teachers with the means to maintain control of

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the school environment.(fn5) Schools exercise said control through the regulation of student speech that would be protected by the First Amendment in other contexts.(fn6) While students clearly do not enjoy the same First Amendment protections as typical citizens,(fn7) the issue is rife with uncertainty and has prompted significant debate in the legal community.

The debate and conflict surrounding this issue arises from speech that takes place outside of the physical territory of the school (off-campus speech).(fn8) What is the limit of this minimized First Amendment protection? When do students take off their student hats and don their citizen hats, entitling them to the full protection of the First Amendment? These questions have proven vexing for both legal scholars and federal judges. Federal appellate courts have attempted to craft standards for determining under what circumstances school officials have the authority to discipline students for speech that originates off-campus.(fn9) This Note aims to articulate a workable threshold test for determining whether an individual's off-campus speech falls under the regulatory umbrella of school officials and the diminished protection of the First Amendment.

Part I draws attention to the distinction between First Amendment protection afforded to the average citizen and the lessened protection afforded to citizens acting in their capacity as students. Additionally, Part I acknowledges the difficulty in assessing whether an individual is acting as a citizen or a student. Part II examines the four occasions in which the Supreme Court has addressed the First Amendment in the context of student speech. The federal circuit courts have struggled to define the limits of these precedents when presented with speech that takes place outside of the physical territory of the school grounds. As a result of this struggle, the circuit courts have developed tests for deciding whether a school may regulate off-campus speech. Part II explains the two most prominent standards-the reasonably foreseeable test and the nexus test. Part II concludes by articulating

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the Ninth Circuit's approach to off-campus student speech and exploring how this approach is applied in C.R. v. Eugene School District 4J.(fn10)

Part III addresses the initial question of whether the Supreme Court's student speech jurisprudence should apply to off-campus speech in certain circumstances. This examination of the Court's precedent will yield the conclusion that the circuit courts were correct in authorizing regulation of off-campus speech; however, their application of this regulation is flawed. The Ninth Circuit is correct that not all off-campus speech is untouchable, but its practice of applying the reasonably foreseeable test and nexus test is ineffective and led to the wrong outcome in C.R. v. Eugene School District 4J.(fn11) Part III addresses the shortcomings of the Ninth Circuit's approach and proposes a threshold test for determining when off-campus speech may be regulated by school administrators. This test aims to address the weaknesses of other proposed standards and provide greater speech protection for students than what is provided by the reasonably foreseeable and nexus tests.

II. BACKGROUND

A. The Supreme Court's Student Speech Jurisprudence

"[T]he constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings."(fn12) This assertion is well-accepted in the legal community; however, the circumstances that give rise to this diminished standard of constitutional protection remain the subject of significant debate.(fn13) The Supreme Court has only addressed the application of the First Amendment to student speech on four occasions.(fn14) All four cases involved speech that was deemed on-campus; thus, the Court has never explicitly determined whether, and to what extent, its precedents govern off-campus student speech.(fn15)

The first examination of a school's authority to restrict a student's right to free speech and expression came in Tinker v. Des Moines Inde-

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pendent Community School District.(fn16) The Court's holding provided a framework for determining whether limitation of student speech is appropriate(fn17) while recognizing students necessarily retain constitutional protections at school: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."(fn18) When courts rule on the constitutionality of a school's regulation of student speech, they do so with an eye to Tinker.(fn19) This pivotal case articulated a discernable standard for assessing whether administrators may police the speech of students.(fn20) At the same time, the case recognized students do not forfeit all their constitutional protections merely by virtue of being at school.(fn21) Tinker's decision and its scope are fundamental to understanding the complex issue of off-campus speech.

The petitioner students in Tinker were members of a group that opposed the Vietnam War. In an effort to publicize their opposition to the war, the students wore black armbands through the holiday season.(fn22) Principals at the petitioners' high school were made aware of this plan and implemented a policy to address it.(fn23) Students were asked to remove these armbands and if they did not comply, they were suspended until they returned without the armband.(fn24) The petitioners were suspended as a result of this policy and brought suit against school officials.(fn25)

When ruling on this case, the Supreme Court's opinion recognized the need to defer to school officials in order for schools to maintain authority over their students.(fn26) However, this interest must be reconciled and balanced with students' prerogative to exercise their rights under the First Amendment.(fn27) The Court attempted to strike that balance, holding "conduct by the student . . . [which] materially disrupts classwork or involves substantial disorder or invasion of the rights of

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others is, of course, not immunized by the constitutional guarantee of freedom of speech."(fn28) The Court analyzed the students' expression under this standard and found insufficient facts to support a finding of material disruption or a substantial invasion of the rights of others.(fn29)

Tinker's test can be summarized as follows: schools may police student speech if it...