As HEA 1423 is implemented by school districts (which addresses anti-bullying policies that extend beyond school property, especially cyber-bullying), courts around the country are ruling on Free Speech challenges to such school policies. In August 2013, the Ninth Circuit Court of Appeals found in Wynar v. Douglas County School District, that a student’s Free Speech rights were not violated and the school could expel the student after making threats of shooting students at school on MySpace. The court applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Under Tinker, schools may restrict speech that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities: or that imposes on “the rights of other students to be secure and to be let alone.” 393 U.S. at 508, 514.
The Court specifically did not consider “whether Tinker applies to all off-campus speech such as principal parody profiles or websites dedicated to disparaging or bullying fellow students.”
The Wynar opinion also noted that many circuits have “wrestled with the question of Tinker’s reach beyond the schoolyard,” specifically citing cases from the Second, Third, Fourth, Fifth, Eighth, and Eleventh Circuits. No Seventh Circuit cases, which includes Indiana, were noted.
For more, see:
Anti-bullying School Policy Implementation
Anti-bullying — Schools as Law Enforcement Investigators?
Cyberbullying — What to Say to Kids
U.S. Secret Service and U.S. Department of Education, The Final Report and Findings of the Safe School Initiative (May 2002).
Can Schools Suspend Students Who Make Online Threats to Harm Other Students?
Indiana Juvenile Justice Blog 