Legal Update: Free Speech, Student Discipline, and Title IX��WiRSA Fall Conference��October 31, 2025

ALANA LEFFLER

ALEFFLER@LAW-RLL.COM

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ELLA MARTIN

EWOLLE@LAW-RLL.COM

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COPYRIGHT © RENNING, LEWIS & LACY, S.C. 2025

ALL RIGHTS RESERVED.

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First Amendment Rights of Employees

Protected speech/activities:

• Speech on matters of public concern that outweigh the employer’s interest in an efficient and disruption-free workplace.
• Protected concerted activity for mutual aid.

• Unprotected speech/activities:
• Speech made during the course of an employee’s ordinary job duties or in the employee’s official capacity.
• Speech on matters of personal concern to a public employee.
• Speech that indoctrinates students with personal beliefs on religion, politics, or other controversial topics.
• Speech that is obscene or that constitutes a true threat.

Pickering v. Bd. of Educ., 391 U.S. 563 (1968)

• A teacher, Pickering, wrote a letter to a newspaper criticizing the school board’s allocation of funds. Pickering was terminated.
• The trial court and the Illinois Supreme Court ruled in favor of the Board.
• The U.S. Supreme Court reversed, holding that the teacher’s interests in commenting on matters of public concern outweighed the Board’s interest in promoting efficiency.
• Because teachers are the members of the community who are most likely to learn of school funding matters, they must be able to speak on those matters without fear of retaliation.

Pickering Test

1. Was the employee speaking as a private citizen (as opposed to speaking pursuant to their official duties)?

2. Did the employee speak on a matter of public concern?

3. Did the employee’s free-speech interests outweigh the employer’s interest in promoting efficiency?

• Would the speech create problems in maintaining discipline or harmony among coworkers?
• Was the employment relationship one in which personal loyalty and confidence are necessary?
• Did the speech impede the employee’s ability to perform the employee’s responsibilities?
• What were the time, place, and manner of the speech?
• What was the context of the underlying dispute?
• Was the matter one in which debate was vital to informed decision making?
• Should the speaker be regarded as a member of the general public?

Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007)

• A probationary teacher claimed that she was let go after telling a class that she honked her car horn at Iraq war protesters who were holding a sign that said, “Honk for Peace.”
• The district court granted summary judgment for the school, holding that while it was a matter of public concern, the school’s interest in maintaining a workplace free from disruption outweighed the teacher’s interest.
• The Seventh Circuit held that the First Amendment does not entitle teachers to present personal views to captive audiences (i.e., students who are subject to compulsory attendance laws) against the directives of elected officials.
• “[T]he school system does not ‘regulate’ teachers’ speech as much as it hires that speech.”
• The court gave the example that a social studies teacher cannot teach that Benedict Arnold was not a traitor when the curriculum dictates that he was.

Kluge v. Brownsburg Community Sch. Corp. (7th Cir. 2025)

• The school district instituted a policy that all teachers must call students by the names and pronouns registered in the District’s student database. Orchestra teacher, Kluge, refused to do so for transgender students, claiming doing so would cause him to violate his sincerely-held religious beliefs.
• The parties initially compromised by allowing Kluge to call the transgender students by their last names, but two students complained and others said it was “awkward.” The District then said that Kluge would be fired if he did not comply. Kluge resigned.
• After the first appeal, the U.S. Supreme Court decided Groff v. DeJoy, 600 U.S. 447 (2023), which set the religious accommodation/undue burden standard: “the employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
• The hardship must impact the overall business – fellow employees’ dislike of religious practice and expression or the mere fact that an accommodation has been provided may not be considered when analyzing the “undue burden” standard.

Kluge v. Brownsburg Community Sch. Corp. (7th Cir. 2025)

• The Seventh Circuit sent Kluge back to the district court to determine whether the last-name-only accommodation constituted an undue burden.
• The district court denied Kluge’s motion for summary judgement, finding that there were genuine issues of material fact about the sincerity of his religious beliefs. The district court granted the school’s motion for summary judgement, finding that the last-name-only accommodation placed an undue hardship on the school’s mission to “educate all students” by “fostering a safe, inclusive environment for all students.” As a second basis for undue hardship, the court found that the last-name-only accommodation put the school at risk of legal liability under Title IX. The teacher appealed.

Kluge v. Brownsburg Community Sch. Corp. (7th Cir. 2025)

• On appeal, the Seventh Circuit reversed the district court’s decision to grant the summary judgement to school, finding that there were genuine issues of material fact.
• Factual disputes regarding the teacher’s actions (e.g., avoiding calling on transgender students, failing to adhere to the accommodation, etc.) and whether the accommodation disrupted the learning environment.
• Objective standard for undue hardship. “Even if the students suffered subjective emotional injury, those injuries must be objectively reasonable to rise to the level of undue hardship.”
• Viewing the facts in the light most favorable to the teacher (required at summary judgement stage), the court could not conclude that the last-name-only accommodation treated transgender students worse than their classmates.
• Conflicting evidence regarding the sincerity of the teacher’s religious beliefs.

Tempel v. Sch. Dist. of Waukesha, Case No. 23-CV-1169 (Sept. 29, 2025)

• Facts: A teacher tweeted (off school premises and outside of work hours), “My first graders were so excited to sing Rainbowland for our spring concert but it has been vetoed by our administration. When will it end?” She also conducted interviews with the media and engaged with public responses to her tweets.
• Both parties moved for summary judgment on the Pickering balancing test. The teacher admitted that her tweets caused some disruption, but she argued that the disruption was insignificant because the schools did not close and staff members continued to perform her jobs.
• The court disagreed, finding that even looking at the evidence in the light most favorable to the teacher, the school office and District office received about 20 calls per day, many of which involved the caller yelling at, insulting, and even threatening the administrative assistants answering the phone. Parents contacted the school with concerns about school safety. Police were present at the school for one week and at the District office for two days.
• The court pointed out that in her tweets, the teacher identified herself as a first grade teacher and identified her school and school district, which attracted national attention and criticism of the school. The court also noted that “speech on social media can carry a ‘clear risk of amplification’ and therefore disruption.”

First Amendment Rights of Students

• Public school students possess a range of free-speech/expression rights under the First Amendment:
• Speak
• Write articles
• Assemble to form groups
• Petition school officials on issues
• The United States Supreme Court has said that students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”
• However, school officials may regulate certain types of student speech/expression.
• For example:
• Speech/expression that substantially disrupts the school environment or invades the rights of others
• Speech/expression that is lewd

Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)

• A group of students chose to wear black armbands to signify their disapproval of the Vietnam war. The school learned of the planned protest and preemptively passed a rule prohibiting students from wearing armbands at school.
• The Supreme Court upheld the students’ right to wear the armbands.
• Schools have comprehensive authority to prescribe and control conduct in the schools consistent with fundamental constitutional safeguards.
• Students may engage in free speech at school so long as it would not materially and substantially interfere with the appropriate discipline and operation of the school.

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)

• A student gave a vulgar and offensive speech at a school assembly nominating a fellow classmate for an elected student government position. The District disciplined the student for the indecent speech.
• The Supreme Court held that school children do no share the same rights of expression in school as adults do outside the school context.
• The speech was so offensive to teachers and students in the audience. Thus, it was entitled to less protection in the school environment
• The District was entitled to disassociate itself from the offensive speech by disciplining the student and signaling to others that the message was inconsistent with its views.

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

• School officials prevented the publication of two articles in the school newspaper that addressed controversial topics.
• The newspaper was written and edited by students for class, and before publication, it was submitted to administration for review.
• The Court held that regulating speech in school-sponsored expressive activities is not subject to the Tinker analysis.
• A school district has greater authority to regulate speech in school-sponsored expressive activities.
• The school newspaper is a nonpublic forum, which the school district could regulate, provided the action was reasonably related to legitimate pedagogical concerns.

Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7th Cir. 2011)

• The Seventh Circuit held that a District could not prohibit a t-shirt with anti-LGBTQ sentiments (i.e., “Be Happy, Not Gay”) while allowing t-shirts for an event designed to bring attention to the mistreatment of the LGBTQ community (i.e., “Be Who You Are”).
• Although the t-shirt could result in “hurt feelings” among the LGBTQ community, there is no “generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students.”
• The court found insufficient evidence that the t-shirt caused a substantial disruption or would provide the harassment of LGBTQ students.

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021)

• Freshman B.L. learned that she did not make the varsity cheerleading squad. On a Saturday afternoon, B.L. posted a Snapchat that read: “F*** school f*** softball f*** cheer f*** everything.”
• Another member of the cheerleading squad viewed the post and showed it to an assistant coach. School officials imposed a one-year suspension on B.L. from the cheerleading squad.
• The District Court and the Third Circuit Court of Appeals ruled in favor of B.L., holding that the standard established by the Supreme Court in Tinker v. Des Moines Independent Sch. Dist. does not apply to off-campus, online student speech (and even if it did, the post did not rise to the level of substantial disruption).

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021)

• The Supreme Court held that a school’s regulatory interests are lessened when a student engages in off-campus, social media speech.
1. With regard to off-campus speech by students, school officials rarely stand in loco parentis, meaning that this speech falls into the zone of parental, rather than school-related, responsibility.
2. Courts should be skeptical of school officials’ regulatory interest in policing student social media speech, given that such speech could take place anytime during a 24-hour day.
3. Schools have an interest in protecting even unpopular student speech, because “America’s public schools are the nurseries of democracy.”
• School officials may retain regulatory interest in social media speech that constitutes cyberbullying, threats, or breaches of school security devices.
• The school’s interest in disciplining B.L. was low compared with her First Amendment free-speech/expression rights.

Student Discipline

• Importance of objectively documenting student behavior.
• Examples of student discipline:
• Removal from classroom
• Office referral
• Loss of lunch, recess, etc.
• Detention
• In-school suspension
• Out-of-school suspension
• Expulsion
• Other

Code of Conduct

• School boards must adopt a code of classroom conduct. Wis. Stat. § 120.13(1)(a).
• The code of classroom conduct may provide for different rules/standards of conduct for different schools.
• The code of conduct must include all of the following:
• A specification of what constitutes dangerous, disruptive and unruly behavior or behavior that interferes with the ability of the teacher to teach effectively.
• Any additional grounds for removal of a pupil from class.
• The procedure for determining the appropriate educational placement of a pupil who has been removed from class.
• A procedure for notifying the parent and guardian that their child has been removed from class.

Removal from Classroom

• Removal of students from class are governed by Wis. Stat. §118.164.
• A teacher may remove a student from class if the student:
• Violates the code of classroom conduct, or
• Is dangerous, unruly or disruptive or exhibits behavior that interferes with the ability of the teacher to teach effectively, as specified in the code of classroom conduct.
• The teacher must send the student to the school principal or designee and notify the principal or designee immediately of the reasons for the removal.
• The teacher must provide to the principal or designee within 24 hours after the student’s removal a written explanation of the reasons for the removal.
• Special considerations for students with disabilities.

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• When a student is removed from class, the school principal or designee must place the student in one of the following:
• An alternative education program, as defined in Wis. Stat. §115.28(7)(e)1.
• Another class in the school or another appropriate place in the school, as determined by the school principal or his or her designee.
• Another instructional setting.
• The class from which the pupil was removed if, after weighing the interests of the removed pupil, the other pupils in the class and the teacher, the school principal or his or her designee determines that readmission to the class is the best or only alternative.

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Suspension

• Suspensions are governed by Wis. Stat. §120.13(1)(b).
• Who may issue suspensions?
• Superintendent.
• Any principal or teacher designated by the Superintendent.
• For how long may a student be suspended?
• A maximum of 5 consecutive school days.
• The suspension may be extended to a maximum of 15 consecutive school days by sending a notice of expulsion hearing on or before the last day of suspension. The district may send a separate notice that the suspension has been extended OR the suspension extension may be included in the expulsion hearing notice.
• Note: There are special considerations and timelines for students with disabilities.

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Suspension: Statutory Grounds

• What are the statutory grounds for suspension?
• Non-compliance with school rules.
• Knowingly conveying a threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives.
• Conduct while at school or while under the supervision of school authority that endangers the property, health or safety of others.
• Conduct while not at school or while not under the supervision of a school authority that:
• Endangers the property, health or safety of others at school or under the supervision of a school authority, or
• Endangers the property, health or safety of an employee or school board member of the school district.
• Note: “Endangering conduct” includes making a threat to the health or safety of a person or making a threat to damage property.
• Student possession of a firearm while at school or while under the supervision of a school authority (mandatory suspension).

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Suspension: Notice

• Prior to any suspension, the student must be advised of the reason for the proposed suspension.
• The parent(s)/guardian(s) of a minor student must be given prompt notice of suspension and reason for suspension.
• Best practice: Notice of suspension should be in writing, but it can be preceded by verbal notice.
• Best practice: Include the particulars of misconduct in the written notice of suspension (i.e., date, description of misconduct, approximate time, location), in case the suspension notice is subsequently used to prepare a notice of expulsion hearing.
• During a suspension, the student cannot be denied the opportunity to take quarterly, semester or grading period exams or complete missed work.

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Suspension: Appeals

• Within 5 days of the start of the suspension, the student or his/her parent(s)/guardian(s) may request a conference with an administrator to appeal the suspension.
• The administrator who will hear the appeal may not be a principal, administrator, or teacher in the suspended student’s school.
• If the administrator concludes that the suspension was unfair, unjust, or inappropriate, or that the student suffered undue consequences as a result of the suspension, the suspension must be expunged.
• The administrator must make his/her decision within 15 days of the conference.
• The statute does not provide an opportunity for further appeal, but remember to check your School Board Policy.
• The State Superintendent of Public Instruction has no authority to review suspensions.

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Expulsion

• The right to a free public education is guaranteed by the Wisconsin Constitution for children ages 4 through 20. Wis. Const., Art. X, § 3. This clause creates a property right pursuant to the 14th Amendment of the United States Constitution. The property right—that is, the right to a free public education—may not be taken away with due process.
• Notwithstanding this constitutional requirement, Wisconsin’s expulsion statute, Wis. Stat. § 120.13(1)(c), authorizes school districts to expel a student.
• The Department of Public Instruction has concluded that Wisconsin’s expulsion statute satisfies the procedural due process requirements of the 14th Amendment.
• The ordinary and accepted meaning of “expulsion” is that the student is not permitted to attend school at all for a specified period of time. Decision and Order No. 678 (March 2, 2011).

Expulsion: Statutory Grounds

• Repeated refusal or neglect to obey school rules.
• Knowingly conveyed or caused to be conveyed any threat or false information concerning an attempt or alleged attempt to destroy any school property by means of explosives.
• Engaged in conduct while at school or while under the supervision of a school authority which endangered the property, health or safety of others.
• While not at school or while not under the supervision of a school authority engaged in conduct which:
• endangered the property, health or safety of others at school or under the supervision of a school authority; or
• endangered the property, health or safety of any employee or school board member of the school district in which the student is enrolled.
• Possessed a firearm while at school.
• In addition to the above grounds, a student who is at least 16 years old may be expelled if the Board finds that the student repeatedly engaged in conduct while at school or while under the supervision of a school authority that disrupted the ability of school authorities to maintain order or an educational atmosphere at school or at an activity supervised by a school authority.

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Expulsion: Threats

• A threat alone may constitute endangering the health, safety, or property of others.
• Wis. Stat. §120.13(1)(c)1. specifically states that “conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.”
• If the threat was not made at school or under the supervision of a school authority, the Administration’s presentation should establish a nexus between the threat and the school environment. For example: At whom was the threat directed? If the threat was made on social media, is there evidence that district students or staff viewed the threat? What was their reaction? Did students and staff perceive it as a threat and feel unsafe at school? Did the threat disrupt the educational environment?

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Expulsion: Firearms

• A school district must commence expulsion proceedings and expel a student for not less than one year whenever it finds that the student, while at school or while under the supervision of a school authority, possessed a firearm as defined in 18 USC § 921(a)(3).
• A school board may modify this requirement on a case-by-case basis, and it must modify this requirement if necessary to comply with special education laws.
• 18 USC § 921(a)(3) defines “firearm” as:
• Any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by action of an explosive;
• The frame or receiver of any such weapon;
• Any firearm muffler or firearm silencer; or
• Any “destructive device” (e.g., bomb, grenade)
• The term “firearm” does not include BB guns or Air-Soft guns; however, the possession or use of BB guns or Air-Soft guns is generally still subject to discipline (up to and including expulsion) under School Board Policy.

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Expulsion: Notice of Expulsion Hearing

• Must provide at least 5 days’ written notice of the expulsion hearing to the student, and if the student is a minor, to the student’s parent(s)/guardian(s).
• The notice must include the following:
• The specific statutory grounds for expulsion (e.g., conduct while at school that endangered the health, property, or safety of others).
• The particulars of the student’s alleged conduct that serves as the basis for the expulsion recommendation.
• The time and place of the hearing.
• That the hearing shall be closed at the request of the student or the parent(s)/guardian(s).
• That the Board shall keep written minutes of the hearing. 
• That any Board order of expulsion shall be mailed with a copy of the order to the student and, separately, to the student's parent(s)/guardian(s). 

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Expulsion: Notice of Expulsion Hearing

• Must be sent in separate envelopes to both the student and student's parent(s)/guardian(s).
• If the student’s parent(s)/guardian(s) do not live together, must be sent to both parent(s)/guardian(s).
• Must be sent at least 5 calendar days before date of hearing. (Count day of mailing or day of hearing, but not both.)
• Do not need to send the expulsion notice by certified mail, but many school districts do so for proof of receipt.
• May wish to consider sending the expulsion notice by first class mail in addition to certified because some people don't pick up certified mail. May also send via e-mail.
• May correct errors in a Notice of Expulsion Hearing, but the amended notice must still be sent at least 5 calendar days before the hearing.

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Expulsion: Notice of Expulsion Hearing

• The notice must include (cont’d):
• That the student may appeal the Board's decision to the State Superintendent;
• That the State Superintendent of Public Instruction has 60 days to review and decide an appeal;
• That the decision of the Board shall be enforced while the Department reviews the Board's decision;
• That an appeal from the decision of the State Superintendent of Public Instruction may be taken within 30 days to the circuit court for the county in which the school is located;
• That the state statutes related to student expulsion are Wis. Stats. §§119.25 (Milwaukee Public Schools only) and 120.13(1).
• Best practice is to also include a statement that in considering whether to expel, and if so, for what period of time, the Board may consider the student’s complete disciplinary and academic records and that these records are available for the student’s and parent’s/guardian’s review as outlined in Wis. Stat. §118.125.

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Expulsion: Notice of Expulsion Hearing

• When describing the particulars of the alleged misconduct in the notice:
• Date, time, location, description of conduct – be specific!
• Failure to sufficiently state the particulars of the alleged misconduct is the most common procedural issue flagged by DPI on appeal.
• “The notice of expulsion hearing in this case merely alleged that “[o]n Tuesday, April 30, 2024, [the pupil] had taken a photo of another student in the bathroom off of the Mauston High School Commons, and sent it to a group of students via a social media app.” This does not constitute adequate notice. . . Because the notice failed to specify the time of the misconduct, it does not constitute adequate notice. With respect to the description of the misconduct, the notice failed to provide sufficient information to alert the pupil as to the problem with the photo. For example, the notice failed to state that the subject of the photograph was partially unclothed and using the bathroom facilities.” Decision and Order No. 854 (August 22, 2024) .

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Expulsion: Notice of Expulsion Hearing

• Particulars of the alleged misconduct (cont’d).
• “With respect to the October 30 allegation, the notice states solely that after Student B and her friends confronted Student A “on Monday 10/30 during lunch…[the pupil] took his phone and threw it in the river anyways.” This does not constitute adequate notice as to the location of the alleged 6 misconduct. The notice fails to specify where the confrontation took place, what river is being referred to, whether the river is on or next to school grounds or not, whether the confrontation took place near “the river” or whether the pupil went there after the confrontation to dispose of the phone or any specific location near the unnamed river from which the phone was thrown.” Decision and Order No. 845 (January 18, 2024).

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Expulsion: Notice of Expulsion Hearing

• When relying upon Repeated Refusal or Neglect to Obey School Rules as a basis for the expulsion recommendation:
• The notice must include the particulars of the misconduct for each incident.
• At a minimum, the student’s behavior records should be enclosed and incorporated by reference in the notice.
• “The evidence introduced at the hearing suggested that the district’s allegation that the pupil engaged in repeated refusal or neglect to obey the rules was based on his significant disciplinary history over several years. However, that disciplinary history was not described in the notice of expulsion hearing and was mentioned in the notice solely as something that might be considered by the board after the misconduct specified in the notice was proven when determining whether to expel and for how long. Although the notice of expulsion hearing did state that “[t]he expulsion proceedings are based upon your failure to fulfill the terms of the Voluntary Pre-Expulsion Agreement dated September 18, 2023,” the notice did not describe the conduct that led to the Voluntary Pre-Expulsion Agreement or any other incidents of repeated refusal or neglect to obey the rules. Thus, the expulsion cannot be affirmed on the ground of repeated refusal.” Decision and Order No. 807 (Feb. 7, 2022).

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Title IX

• Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination against students, employees, and other individuals (e.g., third parties, applicants for employment) based on sex in school’s education programs, activities, operations that receive federal financial assistance.
• Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Sexual Harassment

• Conduct on the basis of sex that occurs in any education program or activity of the school in the U.S. that satisfies one or more of the following:
• An employee of the institution conditioning the provision of an aid, benefit, or service of the institution on an individual’s participation in unwelcome sexual conduct (quid pro quo); or
• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity; or
• Sexual assault, dating violence, domestic violence, or stalking (as defined by law).

What are Schools Required to Do under Title IX?

• Since the U.S. Department of Education issued regulations that went into effect August 14, 2020, Schools are required to:
• Designate a Title IX Coordinator
• Train staff to understand the definition of sexual harassment and gender discrimination under Title IX
• Respond immediately to reports of sexual harassment
• Adopt and implement a grievance process for formal complaints of sexual harassment
• Ensure all parties involved in complaints are treated equitably
• Train school administration and staff involved in the Title IX process

Staff Reporting Obligations

• Obligation to Report. All school district employees who witness or otherwise learn of conduct that may constitute sexual harassment or other types of sex discrimination must promptly report to the Title IX Coordinator.
• Mandatory reporting. If the evidence suggests that the sexual harassment constitutes a crime or requires mandatory reporting, the Title IX Coordinator must report the harassment to social services and/or law enforcement agency.
• When a report of sexual harassment is made, the Title IX Coordinator must promptly:
• Contact the alleged victim to discuss the availability of supportive measures and consider the alleged victim’s wishes with respect to supportive measures.
• Explain to the alleged victim the process for filing a formal complaint.
• Ensure both parties are treated equally and apply a presumption that the accused is not responsible for the conduct until a determination is made following the grievance process.
• Title IX allows for an emergency removal of a student if the student poses a threat to the physical safety of the alleged victim or others.
• Title IX allows the school to put an employee on administrative leave pending the completion of the grievance process.

Thank You!