While FIRE focuses on student and faculty rights at our nation’s colleges and universities, some cases in the K–12 context have the potential to affect our work as well. On December 27, a federal judge in Tennessee refused to throw out a First Amendment claim against a public school district that punished students for out-of-school social media posts. With many colleges striving to expand their jurisdiction over offenses committed off-campus, this ruling is a helpful affirmation that even K–12 schools—which may legally restrict student speech in a way that public colleges cannot—may not punish speech without actual evidence that such speech had an impact on the school’s activities or environment.
This case, Nixon v. Hardin County Board of Education, began when two students tweeted at each other about a third girl, writing: “Good Luck. Shoot her in the face,” and “I hate her … I’ll kill her.” Though the context of the comments (including some smiley faces) suggested the comments were not meant to be threats, the school principal told the girls that they would be “reassigned to an alternative school” for 45 days.
Even when speech does not fall into an unprotected category of expression, like true threats, courts have held that K–12 schools may sometimes punish out-of-school speech when it substantially disrupts the school’s activities. But Judge Daniel Breen was careful to emphasize that the school had not shown that the speech at issue in this case met the requirements to subject it to school punishment, as articulated by the U.S. Supreme Court in the landmark 1969 decision Tinker v. Des Moines Independent Community School District:
Here, the speech had no connection to [Hardin County Middle School] whatever other than the fact that both the speaker and the target of the speech studied there. The speech was not made at school, directed at the school, or involved the use of school time or equipment. No disruption of school activities or impact on the school environment has been shown. Thus it is the finding of the Court that the Defendants have fallen short of establishing that summary judgment should be granted in their favor.
While the case is not over, and the school district will have the opportunity to contest the allegations at trial, it is encouraging to see a court reject the overbroad argument that speech may be punished simply because the speakers and the target of the speech were students at the school. Too often administrators attempt to justify punishing off-campus speech by pointing to nothing more than generalized and speculative fears of potential disruption. Students across the country will benefit if judges refuse to take these defenses at face value and require actual evidence of disruption before rejecting students’ First Amendment claims.