SSDA Today - Spring/Summer 2018 - 11

administrators discipline students for off-campus expression
on social media.
When school officials investigate and respond to incidents on social media like that in Shen v. Albany Unified
School District, they are faced with complex factual and
legal questions. Who was involved? What was the extent
of the involvement? Did it relate to school, pose a threat, or
harm students or staff? What is the appropriate response?
Does the school have jurisdiction to discipline students for
their online posts? Who should be disciplined and what is
the appropriate discipline?
THE OFF-CAMPUS SPEECH TEST

Earlier this year, the United States Supreme Court identified social media as "perhaps the most powerful mechanism available" today to make a person's voice heard.
(Packingham v. North Carolina (2017) 582 U.S.). Students,
like other members of contemporary society, have the right
to have their voices heard. They have the right to freely
speak, write, and publish their thoughts, and schools may
not restrain or abridge this liberty absent certain exceptions. This right is afforded under the First Amendment of
the United States Constitution, as well as various California
state laws.
Yet, freedom of expression must be balanced with a
school's duty under the Education Code to prevent conduct
such as discrimination, harassment, intimidation, and bullying based on actual or perceived protected characteristics,
regardless of whether it occurs at school, at home, or online.
Balancing these interests is difficult and likely to result in
a complaint, lawsuit, community unrest, and/or attention
from the media.
The Ninth Circuit previously held that off-campus social
media speech is not beyond the reach of school officials.
(See C.R. v. Eugene Sch. Dist. 4J (9th Cir. 2016) 835 F.3d
1142; Wynar v. Douglas County Sch. Dist. (9th Cir. 2013) 728
F.3d 1062.) In order to discipline (or otherwise regulate) a
student for off-campus speech, however, the speech must
meet the requirements of the off-campus speech test. That
is, the speech must: (1) be tied closely enough (have some
nexus) to the school, or it must be reasonably foreseeable
that the off-campus speech would reach the school; and
(2) substantially disrupt or materially interfere with the
school environment or activities, or it must be reasonable
to forecast that it will cause a substantial disruption of or
material interference with the school environment or activities, or collide with the rights of students to be left alone in
the school environment.
APPLYING THE TEST

Each of these factors requires careful analysis, and school
administrators should exercise caution and investigate thoroughly before proceeding with discipline. While every case
is fact-specific, the district court's analysis in Shen v. Albany

Unified School District provides a framework for approaching these issues.
1. NEXUS TO SCHOOL OR REASONABLY
FORESEEABLE TO REACH SCHOOL

Under the court's analysis, even though the racist social
media posts were made off-campus, many had a close
relationship to the school. The posts were readily visible
to students and many pertained to students and school
activities/events.
School administrators could reasonably expect the posts
would reach the school because some of them targeted
students who would be affected by the content. The posts
also related to ongoing social tensions and race relations
occurring at schools, and were designed to garner offensive
reactions from classmates.
2. SUBSTANTIAL DISRUPTION OR INFRINGEMENT
ON THE RIGHTS OF OTHER STUDENTS

The court also found the offensive and racially insensitive
Instagram content to have immediately caused a "substantial disruption." Students gathered in hallways while
intensely talking, crying, and yelling about the posts. Police
and mental health counselors had to be called. Classroom
instruction was halted to discuss the posts, and several
students struggled to attend school or perform schoolwork.
The court found the facts clearly supported expulsion of
the student who created the Instagram account and subject
posts, even though the posts were made off-campus.
The court likewise found it proper to discipline students
who actively approved the posts with affirming comments
or "likes" because their actions "meaningfully contributed"
to the disruption. Since many of the underlying posts were
found to have had a nexus to the school and it was reasonably foreseeable they would reach the school, the court
extended these findings to the related comments and posts.
Moreover, since the students affirmed posts that denigrated
their classmates' race, ethnicity, or physical appearance
and/or threatened violence, the comments and likes also
interfered with the rights of their classmates to be left alone.
The court noted, however, it would likely be improper to
discipline students who approve general, offensive posts
not directed at any particular student. While generally
offensive, racist, or hateful speech not directed toward
particular students is unsettling and hurtful, such speech
is protected under the First Amendment and did not constitute harassment or bullying. Similarly, disciplining a
student who merely "follows" a social media account and
does not post, comment, or affirm the speech would likely
violate free speech because following may be "completely
devoid of any affirmative speech."
While Shen's summary judgment order is issued by a
federal district court and thus not controlling in California
state courts or in other district courts throughout the state,
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Table of Contents for the Digital Edition of SSDA Today - Spring/Summer 2018

EXECUTIVE DIRECTOR’S COLUMN
Student Free Speech: School Officials’ Response to Student Social Media Comments, “Likes” and Followers
CalPERS Rate Increases Begin to Stabilize
New School Nutrition Laws Take Effect
Website Accessibility: How an Educational Entity Can Ensure its Website is Accessible to those with Disabilities
After Years of Debate, Special Education Credential Seems Destined for Changes
School Board Elections and the California Voting Rights Act: Districts Shift from At-Large to District-Based Elections
ADVERTISER’S INDEX
SSDA Today - Spring/Summer 2018 - Intro
SSDA Today - Spring/Summer 2018 - cover1
SSDA Today - Spring/Summer 2018 - cover2
SSDA Today - Spring/Summer 2018 - 3
SSDA Today - Spring/Summer 2018 - 4
SSDA Today - Spring/Summer 2018 - 5
SSDA Today - Spring/Summer 2018 - EXECUTIVE DIRECTOR’S COLUMN
SSDA Today - Spring/Summer 2018 - 7
SSDA Today - Spring/Summer 2018 - 8
SSDA Today - Spring/Summer 2018 - 9
SSDA Today - Spring/Summer 2018 - Student Free Speech: School Officials’ Response to Student Social Media Comments, “Likes” and Followers
SSDA Today - Spring/Summer 2018 - 11
SSDA Today - Spring/Summer 2018 - 12
SSDA Today - Spring/Summer 2018 - CalPERS Rate Increases Begin to Stabilize
SSDA Today - Spring/Summer 2018 - 14
SSDA Today - Spring/Summer 2018 - New School Nutrition Laws Take Effect
SSDA Today - Spring/Summer 2018 - Website Accessibility: How an Educational Entity Can Ensure its Website is Accessible to those with Disabilities
SSDA Today - Spring/Summer 2018 - 17
SSDA Today - Spring/Summer 2018 - 18
SSDA Today - Spring/Summer 2018 - After Years of Debate, Special Education Credential Seems Destined for Changes
SSDA Today - Spring/Summer 2018 - 20
SSDA Today - Spring/Summer 2018 - School Board Elections and the California Voting Rights Act: Districts Shift from At-Large to District-Based Elections
SSDA Today - Spring/Summer 2018 - ADVERTISER’S INDEX
SSDA Today - Spring/Summer 2018 - cover3
SSDA Today - Spring/Summer 2018 - cover4
https://www.nxtbook.com/naylor/SSCB/SSCB0218
https://www.nxtbook.com/naylor/SSCB/SSCB0118
https://www.nxtbook.com/naylor/SSCB/SSCB0217
https://www.nxtbook.com/naylor/SSCB/SSCB0117
https://www.nxtbook.com/naylor/SSCB/SSCB0216
https://www.nxtbook.com/naylor/SSCB/SSCB0116
https://www.nxtbookmedia.com