Recent cases show that officials must do more to protect student speech

Dave Roland, JD

More than fifty years ago, in the landmark First Amendment case of Tinker v. Des Moines, the U.S. Supreme Court famously proclaimed that students’ constitutional rights to free expression “do not stop at the schoolhouse gate.” Yet a disturbing nationwide trend shows that school officials and law enforcement increasingly reach far beyond the proverbial “schoolhouse gate” to impose harsh punishments on students for social media posts made off-campus, outside school hours, and unrelated to school activities.

Two recent Missouri cases exemplify this overreach. In one, a 13-year-old middle school student was punished after posting a photo of empty Dr. Pepper cans glued together to resemble a gun. The creative display, shared on his personal social media with no connection to school, did not threaten harm to anyone or anything and there is no evidence that the social media post caused any disruption of the school’s educational environment. But because one parent complained about the post, the school suspended the student for three days. 

In another incident, a 12-year-old girl received a full-year suspension for sending a direct message to a student in a nearby school district asking whether she should be concerned about a threatening message she had seen from someone else’s post. School officials acknowledged that the student did not intend to scare or threaten anyone—she was simply seeking insight from the other student about someone else’s post—yet the school accused her of making a “false report” and engaging in “disrespectful or disruptive speech or conduct.” School officials suspended her for the entire academic year and throwing her life into disarray.

These are not isolated cases. As detailed in a Washington Post investigation, nearly 500 students were arrested in the weeks following the Apalachee High School shooting in Georgia, often for ambiguous online jokes or comments interpreted as threats, even without evidence of real danger. In Volusia County, Florida, Sheriff Mike Chitwood aggressively pursued arrests and publicized mugshots of minors for similar non-threats, escalating fear over facts.  In Arizona, a high school student typed out a series of joking draft emails that included statements such as “Mister Mister I want to date your sister” and “Skibidi toilet my grades are in the toilet.” The student also typed “Gang gang gimme a better grade or I shoot up da skool homie.”  None of these messages were ever sent.  Indeed, they were quickly deleted. Nevertheless, the school district suspended the student for several days just for having typed that sentence on a school-supplied computer.

The Supreme Court has long safeguarded student speech. In addition to Tinker, the Court recently ruled in Mahanoy Area School District v. B.L., that schools’ have only limited authority over off-campus expression that does not involve a serious threat to or disruption of the school community.

A harmless photo of can art and a private message asking about someone else’s potentially threatening message do not meet these standards. Punishing this sort of speech dramatically and unjustifiably chills students’ free expression. Courts must intervene to ensure that schools are not only providing students due process of law (which includes a presumption of innocence and a right to confront those accusing them of wrongdoing), but also that they are making a sincere effort to distinguish true threats from expression protected by the First Amendment.