Zero Tolerance Strikes Again
We appear to have another illustration of the many reasons I strongly advise my clients against zero tolerance policies. A student has sued a school in Missouri after it suspended him for posting a picture of soda cans that he had glued together in the form of an AK-47. With all the usual caveats that we only know one side of the story as set out in the complaint, it appears that the school may have trouble defending the suspension.
The U.S. Supreme Court decision in Mahanoy Area School District v. B.L. set out some high bars that a school must clear in disciplining students for off-campus speech. First, if the speech is off-campus, the school must not be standing in loco parentis, such as chaperoning students on a field trip or other student activity. Second, a school will have a much higher burden of justifying discipline for off-campus speech than on-campus. Third, schools must also remember their obligation to protect unpopular ideas. Within those confines, school can regulate speech that is obscene, disrupts school activities, or targets other students.
It’s possible that the school may be able to identify one of those effects, but I haven’t been able to find any such facts in the reporting on the issue. No one has identified any profanity or threats from the student. He glued together cans and posted the resulting “art” to his SnapChat account with a song about AK-47s playing in the background. The school in its public statements said that social media “can cause stress” and “can also disrupt the learning environment,” but it didn’t identify any actual disruption. The school did say that “the video had caused fear to at least one student, and understandably so.”
That reaction of one student is not enough “substantial disruption” to justify disciplinary action. As the Supreme Court said in Mahanoy, the school must show evidence of “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular opinion.” Numerous court cases have made clear that the response of people hearing unpopular speech is not enough reason to restrict speech. A “heckler’s veto” carries little weight in free speech cases, including student speech.
It is completely understandable that schools are worried about actual violence and want to forestall any threats. However, the Constitution requires that they distinguish between actual threats and merely unpopular opinions. Guns are not magic objects that pose a danger by their mere depiction. Schools cannot simply respond to the fears of a single student and violate First Amendment rights. Unless the school in this case has more facts to present, the court may send it for remedial education in the First Amendment.