Second Circuit Finds School District Was Not Justified in Disciplining Student for Off-Campus Social Media Post 

Connecticut school administrators often grapple with whether to discipline students for speech that occurs off school grounds and outside a school-sponsored activity (“off-campus speech”). Under Connecticut law, students may be disciplined, including suspended and/or expelled, for off-campus conduct if the conduct violates a publicized policy of the board of education and is seriously disruptive of the educational process.  

In addition to ensuring these standards are met, school administrators must also comply with the First Amendment when disciplining students. Navigating these competing legal requirements – especially when it comes to student speech through social media platforms – can feel like a tightrope act on a rope that is difficult to even find.

Recently, the Second Circuit (which includes Connecticut) issued a decision in Leroy v. Livingston Manor Central School District, 158 F.4th 414 (2d Cir. 2025) that provides some much-needed guidance for schools in the complex area of off-campus speech.  While it declined to adopt a bright-line rule, the Court concluded that “schools may sometimes restrict or penalize off-campus speech because it is threatening [even if it does not rise to the level of a true threat], but they cannot do so because it is offensive.”  The Court acknowledged that the line between “threatening” speech and “offensive” speech will not always be clear and provided a useful framework for conducting this factual analysis (discussed below).

Case Background

The circumstance at issue in Leroy involved a “racially insensitive” off-campus social media post by a high school student.  The post included a picture of the student’s friend kneeling on the student’s neck with the caption, “Cops got another,” and was posted the same day the jury began deliberations in the trial of the police officer charged with the murder of George Floyd. Initially, Leroy considered his post a joke but quickly realized its import and impact and removed the post after a few minutes.  In the meantime, another student took a screenshot and reposted it on other social media platforms, leading to public outcry, student demonstrations, in-school discussion, and an in-school assembly. The school district suspended Leroy for one month, with an option to return earlier if he agreed to the terms of the proposed suspension (which he did).  The district also barred him from participating in all extracurricular activities for the remainder of the school year, including playing football and baseball and attending a senior class trip, senior breakfast, prom, and graduation.  The student claimed that the discipline violated his First Amendment right to free speech and filed a lawsuit against the school district on that basis.

The Court explained that determining whether student discipline was justified in this case (or in any matter involving student speech) requires a fact-specific analysis.  Citing two landmark U.S. Supreme Court decisions, Tinker v. Des Moines Independent Community School and Mahanoy Area School District v. B.L., the Court explained the relevant parameters. As a threshold matter, the Court noted that student free speech rights are analyzed in light of the “special characteristics of the school environment.” The Court also acknowledged that the school’s interests “remain significant in some off-campus circumstances.”  The Court went on to note, however, that there are several features that distinguish off-campus and on-campus speech and which diminish schools’ special leeway to regulate student speech.  Nonetheless, the Court declined to establish a bright-line rule for determining when such speech can be regulated under the First Amendment.

Instead, the Court summarized three factors that must be considered when determining whether discipline is justified under the First Amendment in cases involving off-campus speech: 

1. The nature of the speech.  As to the first factor, the Court examined whether the speech amounted to fighting words, true threats, or obscenity.  If so, the speech would fall outside the ordinary protection of the First Amendment and could be regulated without extensive analysis.
2. When, where, and how the student spoke. As to the second factor, the Court considered the location and timing of the speech, whether there was any meaningful connection to the school (beyond having been shared with social media “friends” that included many students at the school), and whether the speech risked being transmitted to the school environment.  The Court also addressed considerations presented by social media speech, which inherently “carries both a greater risk of transmission to the school environment – and greater power to disrupt the school environment, including by harming other students.”  Still, the Court rejected the idea that off-campus social media posts are equivalent to on-campus speech because allowing schools to regulate the speech in the same manner would “prevent[] students from ‘engag[ing] in that kind of speech at all.’” 
3. The school’s interest in regulating the speech.  As to the third factor, the Court examined the reason why the speech was subject to discipline, the policies implicated, and the school’s interest in preventing certain kinds of speech, including whether there were other methods by which the school could have achieved its stated interest.  The Court also analyzed the school’s interest in preventing disruption, the amount and type of disruption caused, and whether it was caused solely by the student speech and/or the independent decision-making of others in response to such speech.  Finally, the Court reviewed whether the speech invaded the rights of others and the school’s interest in “‘protect[ing]’ the school community by ensuring students feel safe at school” and meeting its responsibility to provide students with “the opportunity to ‘learn without fear.’” 

The Court’s Decision

After considering these factors, the Court opined: “At bottom, schools may sometimes restrict or penalize off-campus speech because it is threatening [even if it does not rise to the level of a true threat], but they cannot do so because it is offensive,” noting that the “line between the two will not always be clear.” 

Ultimately, the Court concluded that the school district’s interest in protecting students on campus did not justify the discipline it had imposed, primarily because (1) there was no evidence that protecting students’ “sense of security” was what motivated the school district (instead, the main motivations were to ensure the student who engaged in the “racially insensitive” speech understood the seriousness of his actions and to deter others from engaging in similar conduct), and (2) there was no evidence that the student intended to threaten, bully, or harass any other students.  As such, regulating the speech at issue was not justified.

Takeaways

School administrators investigating off-campus student speech, including social media posts, are well-advised to engage in a fact-specific analysis of the speech at issue.  While there is no bright-line rule for determining whether to discipline and/or how to address off-campus speech (including social media activity), Leroy provides an updated framework that should prove helpful to school administrators making disciplinary decisions in these types of matters.

In determining whether to impose discipline for student speech that occurs outside of school or a school-sponsored activity, administrators should first consider the threshold matter of whether state statutory requirements are met.  That is, does the conduct violate a publicized policy of the board and is it seriously disruptive of the educational process?  

If yes, administrators are advised to analyze the student speech in light of the Leroy factors:

• Determine the nature of the speech:  Does the speech fall outside the ordinary protection of the First Amendment?  For example, does the speech constitute fighting words, true threats or obscenity?  If so, the speech generally will not be protected.

• Consider when, where, and how the speech occurred:  Was there any meaningful connection to the school or a risk that the speech would be transmitted to the school environment?  Be mindful that off-campus student speech generally enjoys greater protection than on-campus student speech, even when that speech has been shared with other students.

• Consider the school’s interest in regulating the speech:  What policies are implicated and what interests are served by regulating the speech?  Are there other (non-disciplinary) methods by which the school can achieve this interest?  What type and how much disruption did the speech cause?  Was the disruption caused solely by the student speech and/or by the independent actions of others responding to the speech?  Was the speech offensive, or did the speech invade the rights of others, impede students from feeling safe at school, or hinder students’ opportunity to learn without fear?

While there remains no categorical rule for determining whether and how to discipline student speech outside of school, Leroy underscores the importance of considering each situation based on the specific facts involved and reminds schools that off-campus speech cannot always be regulated in the same way or to the same extent as speech that occurs in school.