Can Schools Regulate a Student's Online Speech?

In a Michigan case that questioned if a public high school student’s First Amendment Rights were violated, the U.S. 6th Circuit Court of Appeals affirmed the Eastern District of Michigan’s award of summary judgment for a school district, its superintendent, and a principal.

In Kutchinski v. Freeland Community School District, the Eastern District of Michigan ruled that the defendants had the right to govern a student’s off-campus speech. The student speech at issue involved harassment of teachers and a student.

The case spotlights First Amendment Rights, causing some to pause and ask: What is protected under the First Amendment when students and schools are involved? Can schools regulate online speech?

An Instagram account went awry.

A student created a fake Instagram account pretending to be one of his teachers. The account soon became “graphic, harassing, and threatening” when the student’s friends added posts to the account. The student provided the login and password.

As interest in the Instagram account grew, the student and his friends accepted requests to follow the account and tagged teachers and others in the post. After determining that the account had spiraled out of control, the student removed it from the platform.

The school traced the account back to the student and later gave him a five-day suspension pending further investigation. The letter sent to the student’s parents stated that the suspension was because the student impersonated a staff member by creating a fake online account, posting it, and sharing online login information with others who posted additional inappropriate material. The letter stated that the student could receive additional punishment after further investigation.

After an administrative hearing, the student received a 10-day suspension for “gross misbehavior for his posting a fake Instagram account impersonating a teacher, posting to that account, and sharing the username and password with other students.”

The student’s father, Jason Kutchinski, filed suit against the school district, claiming the suspension violated his son’s First Amendment Rights. The Eastern District of Michigan denied Kutchinski’s motion.

As outlined in the Supreme Court’s Bethel School District No. 403 v. Fraser ruling, there are categories of student speech that schools may regulate, including “on-campus and some off-campus speech that materially disrupts classwork or involves substantial disorder or invasions of the rights of others.”

Help is available

The municipal attorneys at O’Reilly Rancilio assist school districts throughout southeast Michigan with First Amendment issues and all other school-related matters. If you have questions, please call 586-726-1000 or visit our website.

Categories: Municipal