High School and College Student’s social posts made off school property should not be subject to discipline

Wesleyan College in Macon, Georgia, said Tuesday a student expelled for allegedly making racist comments on social media was reinstated after an appeal revealed the woman did not post the content.

“We received new information showing that the student did not post the racist content in early June,” the school said in a statement. “We will ensure she transitions seamlessly back into campus life when the fall semester begins. She has our full support.”

Previously, the college posted, “A private women’s college in Georgia expelled a student over offensive social media posts, including one in which she used a racial slur against African Americans.

‘Today, Wesleyan administrators learned of racist statements and photos posted on a Wesleyan student’s social media,” the school said in a Facebook statement Thursday. ‘Wesleyan will not tolerate racist behavior in any form,’ the statement read. The private women’s college has about 700 students from the United States and roughly 20 other countries, according to the school’s website,” reddit.com reported.  

Now, Wesleyan College President Vivia Fowler released the following statement on Instagram:

“Last month, Wesleyan stated that it had expelled a student allegedly posting racist content on social media. Today, we retract and repudiate the statement that this student posted the racist content that appeared on social media in early June.

On the morning we learned of the information, we launched an investigation and expelled the student that afternoon, giving her the right to appeal as provided in our policies.

The student exercised her right to appeal. On July 10, the Wesleyan Student-Faculty Judicial Board, comprised of two faculty members, two staff members, and two student government members, ruled in the student’s favor, overturning the expulsion effective immediately. The committee considered new information that we learned in the weeks following the student’s expulsion, which questioned the accuracy of the original information. This information shows that the student did not post the racist content in early June while enrolled at Wesleyan…” [grammar corrected and Emphasis Applied]

We think the student should persist with a lawsuit for emotional distress and other damages for the college’s unexamined and negligent decision to expel her. The reversal of the decision to expel her is mitigating but not dispositive; she still has standing, and the controversy remains ripe for litigation.

The suit should also focus on whether any student who is disciplined for posting alleged racist commentary while not on school property is proper. Past courts have determined that students possess first and fourteenth amending rights, and they can utter, write, and display symbolic messages to express their opinions, however unpopular they might be.

The U.S. Supreme Court extended the school’s jurisdiction to include conduct occurring away from school grounds. The only prohibition that mattered was whether the expression “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school.”

In TINKER v. DES MOINES SCHOOL DIST,  The court stated. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”  

The court added the following colorable and often quoted passage to reinforce the notice that in Meyer v. Nebraska, Mr. Justice McReynolds expressed this Nation’s repudiation of the principle that a State might so conduct its schools as to “foster a homogeneous people.” He said:

“In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although men have deliberately approved such measures of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institution’s rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a [393 U.S. 503, 512]   State without doing violence to both letter and spirit of the Constitution.”

The court added, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the `marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, than through any authoritative selection.” [citations and quotes omitted and Grammer corrections made]

The principle we are concerned with is the court’s readiness to include ideas in formats away from school property (the students were on school property in the Tinker case). It is true that in this case, prohibitions are sustained only when the alleged forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school; it is also true that the advent of social media wasn’t in place at the time of the Tinker decision; messages spread widely through formats such as SnapShot, Twitter, Facebook, and others. These platforms give students a wider opening to convey potentially disruptive messages.

We also think that the old-fashioned slogan that Justice Black, in his dissenting opinion, mentioned, “children are to be seen not heard,” is no longer apropos in today’s society. One defying pupil was Paul Tinker, 8 years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth grade; a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the same family was John Tinker, 15 years old, an 11th-grade high school pupil.  

Notwithstanding the ages of these children. The First and Fourteenth Amendments to the Constitution protects their right to express opinions. We also support the limitations that have placed restrictions on speech, such as those in this case.  

But we are opposed to allowing the school’s rules to extend beyond the actual school property soil. Such invocations invite exploration into all of a student’s most private affairs that have nothing to do with school policy’s alleged violation. It seems unlikely that a post would affect public opinion to the extent that it would materially and substantially interfere with the requirements of appropriate discipline in the school’s operation; the alleged interference should be directly connected to the school, not from afar.

 Where will the boundaries stop? Could students who Tweet from Russia be included”? Could subpoenas in a civil lawsuit be used to obtain protected data on an alleged offender’s platforms? If so, what standard would apply to the person seeking the subpoena? Would the court employ a standard of mere reasonableness—a level of persuasion less than required for the issuance of search warrants in criminal cases?

Even under the court’s standard that a school’s rules must be reasonable (as determined by the court), the extension to off-school property defies reason. It is too loose and nonprotective of the alleged offender’s privacy rights.

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