High Court to decide if “douchebag” student speech case will move forward

The U.S. Supreme Court justices will discuss Oct. 28 in a private conference whether they will hear this term the student speech case where a Burlington-area high school student was punished for calling school administrators “douchbags”.

Education lawyers and student speech activists have said this case provides a good oportunity for the high court to set a precedent for what rights students have in speech they make off campus. The 1969 Supreme Court ruling in Tinker v. Des Moines has provided guidance for decades to school officials on when they can intervene in students speech, but the advent of Facebook, Twitter, YouTube and other digital forums have complicated matters.

The Tinker ruling reversed the disciplinary measures against students wearing black armbands to school in protest of the Vietnam War, declaring that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the justices did allow administrators to censor speech if it “invades the rights of others” or creates “substantial disorder.”

Federal district and appellate courts have recently issued conflicting rulings on the question of when off-campus speech can subject to punishment at school.

In upholding the punishment of a Burlington high school student after she called school officials “douchebags” online, the U.S. 2nd Circuit Court of Appeals in New York noted “The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that… does not occur on school grounds.”

Avery Doninger, the Burlington student who is now in college, needs four justices to agree to hear the case for it to move forward.