Sexual Bullying Near School Not Protected Speech

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By Bernard Pazanowski

A school district didn’t violate the First Amendment rights of a student when it punished him for bullying two younger, disabled students off campus with taunts imbued with sexual overtones, the U.S. Court of Appeals for the Ninth Circuit held Sept. 1 ( C.R. v. Eugene Sch. Dist. 4J , 2016 BL 286203, 9th Cir., No. 13-35856, 9/1/16 ).

This case differs from most current student-speech cases because it deals with speech made directly to the individuals, rather than internet speech, the court noted in an opinion by Judge A. Wallace Tashima.

Circuit Split Not Joined

Where off-campus speech is concerned, its sister circuits are split on the proper test to apply, the court said. The Fourth Circuit uses a nexus test, asking how closely the speech is tied to the school, and the Eighth Circuit uses a reasonably foreseeable test.

But under either test, disciplining the student for his off-campus speech in this case didn’t violate the First Amendment, the Ninth Circuit said.

The harassment took place right after school in a city park that is considered the back field of the school, it said.

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,” it said.

Punishing the student didn’t violate the First Amendment because sexually harassing speech “by definition, interferes with the victims’ ability to feel safe and secure at school,” the court said.

Judges Carlos T. Bea and Larry A. Burns, sitting by designation, joined the opinion.

Marianne Dugan represented the student. Mersereau Shannon LLP represented the school district.

By Bernard Pazanowski

To contact the reporter on this story: Bernard Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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