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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Private schools don't need to worry about the First Amendment restrictions that bedevil public school administrators. &nbsp;But that doesn't mean they don't develop their own headaches as a result of what their students post on social media sites.

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I recently <a href="http://www.wassom.com/social-media-and-student-discipline-in-public-schools.html" target="_blank" rel="noreferrer noopener">blogged </a>at length about the complex body of case law applying the First Amendment to the online speech of public school students. &nbsp; The Supreme Court has held that those students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and yet do not enjoy as much freedom of speech as adults do within those gates. &nbsp;The First Amendment does not prevent public schools from punishing students for speech that could&nbsp;“materially and substantially disrupt the work and discipline of the school.”&nbsp; In the context of social media, courts have had a hard time deciding when students' speech falls under their schools' jurisdiction, and when it poses reasonable risk of material and substantial" disruption.

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Private schools, however, are a completely different story. &nbsp;They are not required to guarantee their students freedom of speech, because the First Amendment does not apply to them. &nbsp;The text of <a href="http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" target="_blank" rel="noreferrer noopener">the Amendment itself</a> reads, "Congress shall make no law . . . abridging the freedom of speech." &nbsp;That restricts what the federal government can do. &nbsp;Courts have applied the same restriction to State governments by interpreting the <a href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution" target="_blank" rel="noreferrer noopener">14th Amendment</a>, which says: "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." &nbsp;Likewise, <a href="http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html" target="_blank" rel="noreferrer noopener">42. U.S.C. 1983</a> (i.e., "Section 1983"), the statute Congress passed to enforce the 14th Amendment, prohibits interference with federal rights under color of state law.

But nothing in either Amendment restricts what private individuals or companies can do. &nbsp;That applies to private schools, too, as the United States Supreme Court made clear in<a href="http://scholar.google.com/scholar_case?case=10176312845394846270&amp;q=+Rendell-Baker+v.+Kohn&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">&nbsp;Rendell-Baker v. Kohn</a>, a 1982 decision. &nbsp;There, the plaintiff was a staff member who was fired for advocating a different process for hiring faculty. &nbsp;She claimed that the termination violated her First Amendment freedom of speech. &nbsp;But the Court never reached that issue. &nbsp;Instead, it looked solely to whether she was terminated by the State or a private entity.&nbsp;&nbsp;"If the action of the respondent school is not state action," the Court said, "our inquiry ends."

The issue in this case was debatable only because the school--a "contract" school that took "problem" students referred by the public schools--received over 90% of its funding from the government. &nbsp;Even so, &nbsp;because the school operated autonomously without state direction, it was a private school not bound by the First Amendment.

Indeed, if anyone asserts students' First Amendment freedom of speech in private school litigation, it's usually the school. &nbsp;At issue in the 2004 decision <a href="http://scholar.google.com/scholar_case?case=8626119710262613145&amp;q=Circle+School+v.+Pappert&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">Circle School v. Pappert</a>, for example, was a Pennsylvania law requiring all students--public and private--to recite the national anthem. &nbsp;Students could opt out, but school administrators were required to notify the parents of those students who did. &nbsp;Several private schools, among others, challenged the decision, saying that it unfairly punished students who exercised their First Amendment right not to speak. &nbsp;The U.S. Court of Appeals for the 3rd Circuit agreed, and struck down the law.

The foregoing discussion comes with one caveat, though: sometimes private schools at least arguably grant their students certain free speech rights through the principles they endorse.&nbsp; This happens more often in the context of private colleges, which sometimes endorse or adopt certain principles of academic freedom that come close to the echoing the same rights provided by the First Amendment.&nbsp; But private K-12 schools could find themselves in a similar bind if they discipline students under a social media policy for exercising rights that they have granted the students in another document.

Social Media Litigation Can Still Be Messy

Because the First Amendment isn't an issue, there are far fewer reported cases involving private-school student use of social media than there is in the public school context. &nbsp;But that doesn't mean that private schools have nothing to lose.

In 2010, the U.S. Court of Appeals for the Fifth Circuit decided the case <a href="http://scholar.google.com/scholar_case?case=11640171359921707299&amp;q=Jegart+v.+Roman+Catholic+Church+of+the+Diocese+of+Houma-Thibodaux&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">Jegart v. Roman Catholic Church of the Diocese of Houma-Thibodaux</a>. &nbsp;There, a senior in a private high school set up a series of Facebook pages related to her Apologetics class. &nbsp;The sites solicited answers from prior students; mocked the Bishop who created the course; and included "a number of profane and mocking comments about the class, the school, and various administrators and teachers." &nbsp;There was no debate that the sites violated student behavior guidelines.

The school punished students based on their participation on the pages. &nbsp;Those who "liked" the pages but made no comments were suspended for a day, while those who commented got various, more severe punishments. &nbsp;Jegart received the worst punishment--a nine-day suspension--because she created the sites.

Jegert was also African-American, while the other students were not. &nbsp;So, although the First Amendment was not available to her, she did sue for racial discrimination. &nbsp;We don't know much else about the circumstances because her legal team did not defend against the school's summary judgment motion in a timely fashion. &nbsp;But regardless of the case's merits, it went all the way through a federal appeal--which is not an inexpensive endeavor.

In 2009, the California Court of Appeals decided <a href="http://scholar.google.com/scholar_case?case=12089727816414500024&amp;q=Doe+v.+Cal.+Lutheran+High+School+Assoc&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">Doe v. Cal. Lutheran High School Assoc</a>. &nbsp;There, school administrators at a Lutheran school discovered the MySpace pages of two female students, which revealed that the students were carrying on a lesbian relationship. &nbsp;The Lutheran school expelled the students for violating its code of conduct.

Again, the school won, but not without significant effort. &nbsp;The court agreed with the school that it was a private, religious organization that was not subject to the state's prohibition against sexual orientation discrimination. &nbsp;But the court examined the state anti-discrimination statute at some length before reaching that conclusion, and at least one judge of the California Supreme Court voted in favor of rehearing the appeal.

And unlike in Jegart, the plaintiff's lawyers in this case aggressively pursued a number of arguments against the school, including that it was a business rather than nonprofit organization; that it had a history of punishing female students more than males; and a suggestion that the administrator who interrogated one of the girls acted inappropriately. &nbsp;Hashing out these issues in a public forum was certainly an embarrassment, not to mention expensive. &nbsp;And with groups like <a href="http://en.wikipedia.org/wiki/Bash_Back!#2008_Disruption_at_Mt._Hope_Church_in_Lansing.2C_MI" target="_blank" rel="noreferrer noopener">Bash Back! protesting and disrupting religious services in the name of gay rights</a>, the case could have drawn more than just unwanted attention.

Should either of these schools have done anything differently? &nbsp;Not necessarily. &nbsp;But both cases serve as reminders that:

Social media is a hotbed for all sorts of litigation, not just lawsuits involving the First Amendment &nbsp;freedom of speech.

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The observation I made in my post about public schools still stands: "If there is a boundary, count on high school students to test it." &nbsp;And often enough, when the student is disciplined, there will be a parent behind them ready to sue.

Lawsuits over private school discipline can mushroom to include other claims as well, potentially causing issues with donor relations, budgeting, accreditation, and even campus safety.

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Therefore, private schools need to be prepared with social media-related policies designed with their particular needs in mind.

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Brian D. Wassom

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Private Schools and Social Media

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Private Schools and Social Media

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