Second Circuit Allows Broad School Oversight of Social Media

December 20, 2011 | Professional Liability | Appeals | Complex Torts & Product Liability

Courts across the country – including a number of federal circuit courts of appeals – continue to struggle with the ability of public school districts to discipline students for offensive online speech made off campus.[1] This past April, in Doninger v. Niehoff, the U.S. Court of Appeals for the Second Circuit weighed in on the matter in an important ruling.[2] Given the October 31 decision by the U.S. Supreme Court denying a petition for certiorari in Doninger,[3] it is time to review the Second Circuit’s decision and its implications.


The Doninger case arose from what is, by now, a relatively common fact pattern. Routinely these disputes start when a public school student, off school grounds, uses his or her home computer or smart phone to access social media tools such as text messaging or a blog. The student posts unflattering and, arguably, inflammatory comments about a teacher, an administrator, a student, or the school district, leading to some measure of discipline being imposed on the student. Thereafter the student or the student’s parents challenge the school’s response in court, usually on First Amendment grounds, thereby making a proverbial and literal “federal case” out of the student’s discipline.

Doninger squarely fits this pattern. As relevant to this discussion, the plaintiff, a member of the high school student council, was upset by scheduling conflicts regarding a student event and, inter alia, posted a message on her blog from her home computer during non-school hours. She stated that the student event was “cancelled due to douchebags in the central office” and she urged people to call or write a school official “to piss her off more.”

The school received numerous calls and emails as well as school protests in regard to the plaintiff’s post alleging that the event had been cancelled. As a result of the plaintiff’s comments, which the school contended were deliberately inaccurate and designed to cause disruption to the school administration, the school refused to allow the student to run for Senior Class Secretary. The student challenged the school’s sanction in court, arguing that the school district had violated her First Amendment rights by prohibiting her from running in the election in response to her blog entry. The school argued, in turn, that it was entitled to qualified immunity in regard to the discipline it had imposed on the student.

After the district court decided the parties’ cross-motions for summary judgment, they appealed, and the case reached the Second Circuit.

The Circuit’s Decision

The circuit court, in a decision by Circuit Judge Debra Ann Livingston, found that the school was entitled to qualified immunity. It began its analysis of the student’s First Amendment claim by stating well established principles that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[4] but neither are constitutional rights of students in public school “automatically coextensive with the rights of adults in other settings.”[5]  It added that, as the U.S. Supreme Court had indicated in Tinker vs. Des Moines Indep. Cmty. School District, students’ rights must be applied in a manner consistent with the “special characteristics of the school environment.” Thus, the Second Circuit explained, school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school,” and offensive speech that would receive full constitutional protection if used by an adult in public discourse may, consistent with the First Amendment, give rise to disciplinary action by a school.[6] 

Additionally, the circuit court continued, educators are permitted to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions so long as their actions are “reasonably related to legitimate pedagogical concerns.”[7] The Second Circuit noted that, most recently, the Supreme Court has determined that public schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” because of the special nature of the school environment and the dangers posed by student drug use.[8]

The Second Circuit then applied these principles to the case before it and the issue of whether the school was entitled to qualified immunity for its acts. First, the circuit court disagreed with the student’s argument that it had been clearly established at the time of the events in this case that off campus speech could not be the subject of school discipline.  It pointed out that the Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that does not occur on school grounds or at a school-sponsored event. Thus, it continued, it was not correct to assert that Supreme Court precedent necessarily insulated students from discipline for speech-related activity occurring away from school property, no matter its relation to school affairs or its likelihood of having effects – even substantial and disruptive effects – in school. Indeed, the Second Circuit noted that it had itself expressly held in 2007 that off-campus speech-related conduct may be the basis for discipline by school officials.[9]

The circuit court next addressed the student’s contention that even if off-campus expression might in some circumstances be regulated by school officials, any reasonable school administrator would know that regulation of that speech was permissible only when the speech-related activity posed a reasonably foreseeable risk of coming to the attention of school authorities and materially and substantially disrupting the work and discipline of the school. The student urged that no reasonable school administrator could have deemed that standard satisfied in this case or, at a minimum, that disputed issues of material fact existed as to the reasonableness of any such conclusion. The circuit court disagreed with these propositions, too.

The Second Circuit observed that the undisputed facts in this case – that the student’s blog post directly pertained to an event at the high school, that it invited other students to read and respond to it by contacting school officials, that students did in fact contact school officials, both in person and through online media, and that school administrators eventually became aware of the student’s blog post – demonstrated that it was reasonably foreseeable that the post would reach school property and have disruptive consequences there.

The student asserted that there was a disputed issue of fact as to whether she had been disciplined because her posting was potentially disruptive or simply because it was offensive. The Second Circuit rejected this argument as well, stating that even assuming a factual dispute as to the district’s motivation, qualified immunity still was proper where the defendants were objectively reasonable in their judgment that they “might reasonably portend disruption from the student expression at issue.”

Finally, the circuit court pointed out that the student’s discipline extended only to her role as a student government representative; she had not been suspended from classes or punished in any other way. Given that the student, in serving in the student government position, had a duty to aid the “continuous communication channel from students to both faculty and administration,” the Second Circuit ruled that it was not unreasonable for the district to conclude that the student, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness to carry out this role properly.

The Second Circuit emphasized that it was not concluding that school administrators were immune from First Amendment scrutiny when they reacted to student speech by limiting students’ participation in extracurricular activities. In this case, however, it found that it was objectively reasonable for school officials to conclude that the student’s behavior was potentially disruptive of student government functions and that the student was not free to engage in that behavior while serving as a class representative – a representative charged with working with these very same school officials to carry out her responsibilities.

The circuit court therefore decided that any First Amendment right of the student’s that allegedly had been violated had not been “clearly established” such that it would have been clear to reasonable school officials that their conduct was unlawful. Accordingly, it found that the defendants were entitled to qualified immunity as to the student’s blog post claim.


Although other circuit courts may view the issues differently, and although different fact patterns may lead to different conclusions in the Second Circuit, the Doninger decision seems to give rather broad latitude to school officials in the Second Circuit to discipline students, whether their speech occurs on campus or off campus, so long as it can be established that off campus speech will, in fact, have resonance on school grounds.

 [1] See, e.g., Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011); Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir. 2011); J.S. v. Blue Mountain School District, 650 F.3d 915 (3rd Cir. 2011); D.J.M. v. Hannibal Public School District, 647 F.3d 754 (8th Cir. 2011).

[2] 642 F.3d 334 (2d Cir. 2011).

[3] 2011 U.S. Lexis 7814 (Oct. 31, 2011).

 [4] Tinker v. Des Moines Indep. Cmty. School District, 393 U.S. 503 (1969).

[5] Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).

[6] Fraser at 682.  

[7] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

[8] Morse v. Frederick, 551 U.S. 393 (2007).

[9] Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007) (where instant messaging icon’s off-campus display posed a reasonably foreseeable risk that it would come to the attention of school authorities and “materially and substantially disrupt the work and discipline of the school,” student’s suspension did not run afoul of the First Amendment).

This article is reprinted with permission from the December 20, 2011 issue of the New York Law Journal. Copyright ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

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