Who pays the real price when a student is suspended for making a post on social media?

ORANGE COUNTY, Fla. — The plastic gun cost only $8.99 at a local thrift store. Apart from the bright orange tip, the gun looked real. The mistake 11-year-old Neil Peterson made was joking that it might actually be real when he posted a picture of himself with the gun on SnapChat over the Christmas break.

By the time he returned to school in January, the posts had been relayed to staff at Horizon West Middle School, and Neil was in trouble.

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“We immediately rushed to the school,” Neil’s father Marc Wilder said.

The school’s resource officer had already checked Neil’s backpack, where there was no gun. Neil said while he had joked online that the gun might be real, he had never threatened to bring it to school or hurt anyone with it.

Neil’s parents were upset, not with the school but with their son. When they learned he’d be suspended for 10 days, they agreed with the punishment.

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“I understand the concern for the safety of students and the faculty and we completely support that,” Marc said.

But then came another call, the 10-day suspension was being extended to January 2022.

“I just can’t agree with that,” Marc said. “I think this was an overreaction to the situation.”

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In a statement, Orange County Public Schools said, “We cannot comment on student discipline due to FERPA. As with any student, we follow the Code of Student Conduct when it comes to student discipline.”

For schools, incidents like this that happen off campus and after school hours and do not break the law, have become increasingly difficult to navigate, with laws not entirely clear as to when and where a school’s jurisdiction begins and ends, especially when it comes to social media.

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“When is it the school’s responsibility to step in, when is it the police, when is it the parents?” said Jackie Wernz, a civil rights attorney who works with many schools across the country. “As someone who tries to minimize risks for schools, I can give you a little bit of an idea of what schools are facing, and that is we face a risk of liability if we don’t respond.”

Wernz points to an upcoming U.S. Supreme Court case which may provide some guidance for schools across the country. The case (B.L. v. Mahanoy) deals with a Pennsylvania high school student expelled after posting a picture of herself and a friend holding up their middle fingers with an expletive-laced tag. The post came away from school, but the school maintains it nonetheless violated school policies.

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“The current doctrine stems from a case called ‘Tinker’ (Tinker v. Des Moines Independent Community School District) which stems from the mid-60s when a group of students wore black armbands to protest the Vietnam War,” says legal expert Anthony Marcum of the R-Street Institute. “In that case, the Supreme Court found that unless the speech was materially or substantially disruptive to the school the school couldn’t regulate that speech, now the wrinkle was the addition of technology and that makes this test a lot more difficult in a 21st century world.”

The addition of technology has only complicated matters for schools over the years with the Supreme Court unwilling until recently to revisit the issue and provide, perhaps, a measure of guidance for schools.

“These sorts of questions really place schools in a difficult place where they have to be educator and sometimes police at the same time,” Marcum said. “It is a difficult and complicated balance of when does the family step in, when does law enforcement step in, and when does the school step in, and it becomes even more difficult with the evolution of technology.”