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Back to "Education Law Notes - Term 3 2021"


Can schools discipline students for misconduct occurring “beyond the school gate” or outside normal school hours?

In 1891, the Chief Justice of New Zealand held that teachers could administer discipline “even for acts done out of school if prejudicial to its order and discipline”. In 1893, a teacher in England physically reprimanded a student after the student got into a fight with another student while they were going to school. It was held that the teacher had the authority to do this.

130 years later, the issue of disciplining students for off-campus and outside school hours behaviour has become more prominent as we’ve entered the cyber-age. For example, the US Supreme Court has recently had to decide whether schools can discipline students for off-campus speech. In this case, Brandi Levy was upset when she discovered that she did not make the senior cheerleading team for the next school year and would remain in the junior squad. One weekend, while at a local convenience store, she posted on Snapchat a photo of her and a friend with middle fingers raised, captioned: “F*** school f*** softball f*** cheer f*** everything”.

Brandi’s Snapchat “friends” included other students from her school, some of whom also belonged to the cheerleading squad. At least one of them took screenshots of her posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother, who was a cheerleading squad coach, and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches “visibly upset” about her posts. Questions about the posts were discussed during an algebra class taught by one of the two coaches.

The coaches decided to remove Brandi from the cheerleading team for the next season, effectively suspending her for a year, because the posts used profanity in connection with a school extracurricular activity and violated team and school rules. Brandy’s subsequent apologies did not change their mind.

The Supreme Court decided by a majority of eight to one that the punishment that School District officials gave Brandi for her social media post violated her free speech rights under the US Constitution’s First Amendment.

Since a US Supreme Court decision in 1969, free speech rights have not prevented schools from regulating student speech that would materially and substantially disrupt the work and discipline of the school, even if that speech occurs off-campus. For example, schools have been able to regulate “indecent”, “lewd”, and “vulgar” speech during a school assembly on the school campus, speech during a class trip that promoted “illegal drug use”, and speech that others could reasonably perceive as being approved by the school, such as in a school newspaper. In Brandi’s case, the Supreme Court emphasised that schools could regulate speech that occurred off-campus. The justices gave examples of serious or severe bullying or harassment targeting particular individuals, threats aimed at teachers or other students, the failure to follow rules concerning lessons, the writing of papers, the use of computers, and participation in other online school activities, as well as breaches of School security devices including material kept on school computers.

Nevertheless, the Supreme Court found in favour of Brandi because her misconduct had taken place beyond the reach of school administrators and “within the zone of parental, rather than school-related, responsibility”. The Court also noted that a school bears a heavy burden to justify intervention in off-campus speech. Finally, the court felt that the school itself had an interest in protecting a student’s unpopular expression, especially when that took place off campus. Noting that schools were the nurseries of democracy, the Court said that representative democracy only works if we protect the “marketplace of ideas. … That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”

The Supreme Court was also influenced by the fact that Brandi did not identify her school in her posts or target any member of the school community with vulgar or abusive language. Further, she posted in her own time away from school to an audience consisting of her private circle of Snapchat friends. The Court also noted that there was no evidence of any endeavour on the school’s part to prevent students from using vulgarity outside the classroom. There was also no evidence that the posts created “substantial disruption” of any school activity. Rather, the discussion of the matter took, at most, 5 to 10 minutes of an algebra class for a day or two.

While it is recognised in Australia that the school’s duty of care may extend to doing something where students are at risk of harm beyond the school campus or outside school hours, there is clearly no duty to discipline students for misconduct beyond the school campus or outside school hours. The more important question for schools is Can they discipline students for such misconduct?

In an English case, the Court of Appeal recognised that teachers could use their disciplinary powers against a student who had attacked another child outside school.

The NSW Department of Education Student Discipline in Government Schools Policy states:

The school discipline policy may apply outside of school hours and off school premises where there is a clear and close connection between the school and the conduct of students.

Independent schools justifiably take a similar approach. To avoid doubt, these schools ought to ensure that their enrolment contracts specifically give them the right to discipline students in respect of behaviour that is outside of school hours or off-campus.

Please contact David Ford or Stephanie McLuckie to discuss how to discipline your students when they misbehave outside of school hours or off-campus or for help in updating your enrolment conditions.

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