The Specific Parameters Remain to be Developed in the Lower Courts, Including a Pending Cyberbullying Case in which VDH, Working with the NSBA, has Filed a Brief.
More than 50 years ago, the Supreme Court issued a landmark decision regarding student speech rights. In Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), the Court made its famous pronouncement that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Recognizing the need for discipline and a focus on learning in schools, the Court identified two circumstances in which regulation/discipline would be appropriate: (1) where a student’s speech causes “material and substantial disruption” of the school, and (2) where the speech “infringes or interferes with” the “rights” of others.
In 1969, the internet, cell phones and social media were all decades in the future and few could even imagine how a student’s speech made from a location outside the “schoolhouse gate” – “off campus” – could nonetheless permeate the school community and affect other students. For the past two decades, the lower courts have wrestled with the task of applying Tinker to a culture in which student speech increasingly takes place through electronic media used in remote locations.
On June 23, 2021 the Court finally applied Tinker to the digital age in Mahanoy Area Sch. District v. B.L., No. 20-255 (2021). The decision is important but, not surprisingly, precise guidance for lower courts and for school districts is limited. The case decided by the Court involved one student’s post on Snapchat. It took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. There was no evidence that it had any effect on the school’s learning environment. Notwithstanding this, the school district imposed upon the student a one-year suspension from the cheerleading program. Based on these facts, the Court in an 8-1 decision held that the school’s one-year suspension of the student from cheerleading activities violated her First Amendment rights.
More important than the Court’s holding in the specific case is the Court’s further statement that “the special characteristics that give schools additional license to regulate student speech [do not] always disappear when a school regulates speech that takes place off campus.” Recognizing that certain attributes of student speech outside the school or its programs mean that schools have less “leeway” in regulating that speech, the Court has left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference.” But the Court nonetheless suggested several areas in which discipline for off-campus speech by students will still be appropriate under the First Amendment.
These include speech that involves “serious or severe bullying or harassment targeting particular individuals”, “threats aimed at teachers or other students”, and “failure to follow rules” pertaining to “online school activities.” The Court declined to “determine precisely…the length or content of any such list of appropriate exceptions or carveouts.” The precise parameters that govern school districts’ application of Tinker to “off-campus” speech now await explication by the lower courts.
One such case is currently pending in the United States Court of Appeals for the First Circuit – Doe v. Hopkinton Public Schools, No. 20-1950. In that case several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been tangentially involved in the Snapchat posts filed suit claiming a violation of their student speech rights, but the federal district court rejected their claim, resulting in further appeal. The case has been briefed and awaits oral argument and eventual decision.
VDH attorney John Foskett has worked with the National School Boards Association in Doe v. Hopkinton Public Schools and has filed an amicus curiae (“friend of the court”) brief that urges the court to uphold the school’s discipline. In the brief, we have focused on the “second prong” in the Tinker decision, which recognizes a school’s authority to regulate student speech that infringes another student’s rights in school. The brief argues that this prong of Tinker clearly permits schools to prevent and punish cyberbullying and its harmful impacts even though the speech generally occurs “off campus.” The brief, which was filed in May 2021, asserts that the lower court’s decision in B.L. did not bar or limit a school’s power to regulate off campus speech that constitutes bullying or harassment. It now appears that the Supreme Court has expressly agreed that this is a permissible area for discipline without violating a student’s speech rights. As noted, the precise contours of that authority must be worked out on a case-by-case basis. Doe v. Hopkinton Public Schools appears likely to be one of the first federal appellate decisions to address the meaning of B.L. in this context.
As further guidance is developed, school districts must keep the following in mind before a student is disciplined for statements made on social media:
Student speech that can be regulated if it takes place during school or school programs may not be subject to discipline if it is made outside school hours and “off campus” unless it fits certain criteria, such as cyberbullying, harassment, or threats that target a specific student/students or staff.
Decisions regarding student discipline for speech that occurs outside of school should be made after consultation with the district’s legal counsel.
This update is provided for informational purposes only and should not be considered legal advice.
