EFF to Arizona Federal Court: Protect Public School Students from Surveillance and Punishment for Off-Campus Speech

Legal Intern Alexandra Rhodes contributed to this blog post. 

EFF filed an amicus brief urging the Arizona District Court to protect public school students’ freedom of speech and privacy by holding that the use of a school-issued laptop or email account does not categorically mean a student is “on campus.” We argued that students need private digital spaces beyond their school’s reach to speak freely, without the specter of constant school surveillance and punishment.  

Surveillance Software Exposed a Bad Joke Made in the Privacy of a Student’s Home 

The case, Merrill v. Marana Unified School District, involves a Marana High School student who, while at home one morning before school started, asked his mother for advice about a bad grade he received on an English assignment. His mother said he should talk to his English teacher, so he opened his school-issued Google Chromebook and started drafting an email. The student then wrote a series of jokes in the draft email that he deleted each time. The last joke stated: “GANG GANG GIMME A BETTER GRADE OR I SHOOT UP DA SKOOL HOMIE,” which he narrated out loud to his mother in a silly voice before deleting the draft and closing his computer.  

Within the hour, the student’s mother received a phone call from the school principal, who said that Gaggle surveillance software had flagged a threat from her son and had sent along the screenshot of the draft email. The student’s mother attempted to explain the situation and reassure the principal that there was no threat. Nevertheless, despite her reassurances and the student’s lack of disciplinary record or history of violence, the student was ultimately suspended over the draft email—even though he was physically off campus at the time, before school hours, and had never sent the email.  

After the student’s suspension was unsuccessfully challenged, the family sued the school district alleging infringement of the student’s right to free speech under the First Amendment and violation of the student’s right to due process under the Fourteenth Amendment. 

Public School Students Have Greater First Amendment Protection for Off-Campus Speech 

The U.S. Supreme Court has addressed the First Amendment rights of public school students in a handful of cases. 

Most notably, in Tinker v. Des Moines Independent Community School District (1969), the Court held that students may not be punished for their on-campus speech unless the speech “materially and substantially” disrupted the school day or invaded the rights of others. 

Decades later, in Mahanoy Area School District v. B.L. by and through Levy (2021), in which EFF filed a brief, the Court further held that schools have less leeway to regulate student speech when that speech occurs off campus. Importantly, the Court stated that schools should have a limited ability to punish off-campus speech because “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” 

The Ninth Circuit has further held that off-campus speech is only punishable if it bears a “sufficient nexus” to the school and poses a credible threat of violence. 

In this case, therefore, the extent of the school district’s authority to regulate student speech is tied to whether the high schooler was on or off campus at the time of the speech. The student here was at home and thus physically off campus when he wrote the joke in question; he wrote the draft before school hours; and the joke was not emailed to anyone on campus or any