Yesterday we told you about the 9th Circuit decision upholding school disciplinary action based on sexually harassing comments by a 7th grade boy. Today, we revisit that case and focus on the inconvenient fact that all of this happened off campus and after school.

School officials have more authority to regulate student expression that occurs during the school day and on campus than they do with things that occur elsewhere. In the 9th Circuit case, the sexual harassment occurred on a bike path that went through a park adjacent to the school. The parties to this case agreed that what happened here happened off campus. So how can the school justify suspending the student?

The court cited earlier cases that established two tests in “off campus” cases—the “nexus” test and the “foreseeability” test. As to nexus, the court noted that the harassment that took place on that bike path “was closely tied to the school.” First, only students were involved in this interaction. Second, the kids were in close proximity to the school, and it was literally just minutes after school let out. Third, there was no clear line of demarcation that said THIS IS SCHOOL PROPERTY and THIS IS NOT. In fact, school administrators routinely referred to the entire area as “the back field.” Key Quote:

….but it is clear that it was school itself that brought the children together on the path. Moreover, it is a reasonable exercise of the School District’s in loco parentis authority to be concerned with its students’ well being as they begin their homeward journey at the end of the school day.

As far as “foreseeability”:

Because the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment.

The ACLU represented the student in this case and made the familiar “slippery slope” argument. If school officials can discipline a student for off-campus behavior, just how far does this extend? The mall? The movie theater? The court did not lay out any hard and fast rule about this, noting that “Our decision is necessarily restricted to the unique facts presented by this case.” Good common sense will have to inform decisions in the future. The court noted that “A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

This is an important decision supporting school district authority from a court that is generally considered the most liberal of our circuit courts. So how bout that! The case is C.R. v. Eugene School District 4J, decided by the 9th Circuit on September 1, 2016.

DAWG BONE: “IN LOCO PARENTIS” IS STILL ALIVE!

File this one under: STUDENT DISCIPLINE

Tomorrow: Still trying to fire the coach…