This past June the Supreme Court issued a landmark decision regarding student speech rights in the digital age. In Mahanoy Area Sch. District v. B.L., No. 20-255 (2021), the Court applied the half-century-old decision in Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), which governs student speech rights under the First Amendment, to student speech that occurs “off campus”/remotely by using modern electronic technology/social media. The Court held that schools have “less leeway” to regulate such speech than they do regarding speech that takes place in the school or during school programs. The Court therefore ruled that the school district had violated a student’s rights under Tinker when it suspended her for a post on Snapchat which 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. In its opinion, however, the Mahanoy Court left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference” and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. These include speech that involves “serious or severe bullying or harassment targeting particular individuals”.

The United State Court of Appeals for the First Circuit has now issued the first federal appellate decision in the country applying Mahanoy to “off campus” speech. On November 19, 2021, the court decided Doe v. Hopkinton Public Schools, No. 20-1950 (1^st Cir. 2021), a case in which attorney John Foskett of Valerio Dominello & Hillman LLC worked with the National Association of School Boards to file an amicus brief.

In Doe, 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 involved in the “off campus” Snapchat posts filed suit claiming a violation of their speech rights under the First Amendment and under the Massachusetts Student Speech statute, G.L. c. 71, § 82. The district court rejected their claims and, in its decision on appeal, the Court of Appeals has affirmed the judgment and has upheld the discipline.

Applying Mahanoy’s interpretation of Tinker, the Doe court ruled that “schools have a special interest in regulating speech that involves ‘the invasion of the rights of others’” and that “[t]his pedagogical interest remains even in off-campus circumstances.” The court distinguished the “general statement of discontent” in Mahanoy, finding it “qualitatively different from bullying that targets and invades the rights of an individual student.” The court next rejected the students’ argument that their minimal role of merely posting on the Snapchat site immunized their conduct. Pointing out that bullying is often a group activity, the court held that the school “reasonably concluded” that the plaintiffs’ activity “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”. It ruled that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “[t]he test under Tinker is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”

The plaintiffs also claimed that their speech was protected under G.L. c. 71, § 82 because that statute uses language suggesting that only speech that “disrupts” the school may be regulated, which is similar to language that was used in Tinker. The court disagreed. It pointed out that the Massachusetts statute was enacted well before adoption of the bullying statute in § 37O and that the latter contains additional language that also was used in Tinker, proscribing conduct that “‘infringes on the rights of the victim at school’”. The court refused to interpret § 82 in a way such that it would “conflict directly with” § 37O or that would render the bullying law “meaningless.”

Doe is significant because it is the first federal appellate decision in the country that addresses “off campus” speech by students in light of the Supreme Court’s Mahanoy ruling. Importantly, it confirms that at least some such “off campus” speech can be the basis for student discipline without violating the First Amendment. As suggested in Mahanoy, whether that speech in a given situation may be regulated will depend to a great extent on the specific facts – such as whether it sufficiently constitutes a “threat of harm”, “harassment”, or “infringes on the rights” of another student. Administrators should consult with school district counsel when these issues arise.

If you have any questions regarding the content of this update, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Joining a continually increasing number of federal and state courts around the country, a justice of the Hampden Superior Court has denied a request for an injunction against the state-wide school mask mandate first ordered by the Commissioner of DESE on August 25, 2021 and against several local school districts’ school mask policies.

In The Family Freedom Endeavor, Inc. et al. v. Riley, et al., two entities and several individual parents brought six actions in various superior courts against DESE, eighteen school districts, and two municipalities, claiming that all lacked legal authority to issue school mask mandates and that these mandates violate various individual constitutional rights. At the request of all defendants, the cases were consolidated in the first-filed case in Hampden County and argument on the injunction requests was heard on October 26, 2021.

On November 16, 2021, the court issued a 15-page decision denying the requests. Addressing the claim against DESE first, the court held that G.L. c. 69, § 1B “unambiguously evinces a legislative intent that [DESE] ensure that students attend classes in a healthy and safe educational environment” and that DESE has “authority …during an unprecedented pandemic to establish policies to ensure safe in-person learning in public schools.” The court rejected an additional argument that there were no “exigent circumstances” that allowed DESE to act under its regulations, stating “the plaintiffs’ blanket denial of exigent circumstances and of the need for masks in schools contradicts the guidance issued by the CDC, the DPH, and the American Academy of Pediatrics.”

Regarding the authority of the local districts to issue school mask mandates, the court held that local entities have the power to “impose health related rules in their own schools” and that this authority has not been preempted by the Commonwealth because there is no conflict between DESE’s mask mandate and the local policies, and because the mandates are “guided by the DPH, other public health authorities, and medical experts.”

Last, the court emphatically rejected the claims that these mandates violate any constitutional rights. The court pointed out that parents do not have a “fundamental interest in not having their children masked at school”; that parental rights “do not include the liberty to expose the community or a child to communicable diseases”; and that these mandates “were created, tailored, and implemented in consultation with medical experts and on the basis of widely accepted public health recommendations.” Noting that the plaintiffs’ arguments “are premised upon nonauthoritative cases as well as thin and heavily contradicted evidence”, the court ruled that the mandates survive judicial review because “[t]hey serve the legitimate State interest of slowing the spread of COVID-19”. Accordingly, the court decided that the plaintiffs had failed to satisfy the requirements for enjoining the mask policies.

The court’s decision means that school districts have the authority to impose rational requirements to protect the health of students so long as those requirements do not conflict with DESE’s policies and orders. While the plaintiffs may try to seek some form of appellate review, the court’s decision is consistent with overwhelming authority throughout the United States and is both thorough and well-reasoned.

Local districts should consult with counsel regarding any questions about mask policies, including whether exemptions or accommodations apply in individual cases.

This update is provided for informational purposes only and should not be considered legal advice.

On October 27, 2021, the Department of Elementary and Secondary Education (DESE) issued an updated joint advisory with the Department of Children and Families (DCF) concerning mandated reporting responsibilities for school personnel in cases of suspected child abuse and neglect.  The update replaces the previous advisory on the same topic issued in 2010.

The updated advisory summarizes the mandated reporting law and answers common questions regarding the law and responsibilities of mandatory reporters.  In addition to school personnel having a duty to report, school committees continue to have a duty to inform teachers, administrators, and other professional staff regarding their reporting duties.  The advisory is intended to assist school committees in meeting this obligation.

A link to the reporting form is included in the updated advisory, making it easy for mandatory reporters to find and submit the required information consistent with Section 51A.

The definitions of “abuse” and “neglect” have been updated:

• Adding “victimization of a child through sexual exploitation and/or human trafficking, whether or not the person responsible is a caregiver” to the definition of “abuse.” And noting the location of the actions do not impact that definition.
• In addition, the advisory makes clear that “neglect” cannot be solely due to a parent or caregiver’s “disability or limited physical condition.”
• The updated reference to “sexual exploitation or human trafficking” was added to various sections of the advisory, making clear that mandatory reporters are responsible for reporting when this conduct is suspected.

Additional guidance regarding a school or district’s ongoing concerns and concerns for children already involved with DCF or the courts in included in the update:

• Even if a reporter is aware that a child is involved with DCF or the court the reporter must still report any suspected abuse or neglect, even when the reporter has already notified the child’s social worker.
• Only if the concerns do not rise to the level of a 51A requirement, can the reporter limit notification to the social worker.
• The guidance goes on to indicate that if a school or district has ongoing concerns after speaking to the social worker the school or district may reach out to the DCF Area Office and speak with the Area Program Manager or Director. When necessary, a school or district may also speak to the DCF Office of Ombudsman or the Office of the Child Advocate Complaint Line if they do not believe DCF is being responsive.

The updated advisory modifies DESE/DCF’s response to questions regarding reports of student harassment, assault or abuse by another student.  Previously the advisory indicated the matter “should be reported to DCF” and police.  The updated advisory is more nuanced and indicates responses will vary based on allegations, applicable laws, regulations, and policies, advising reporters and schools to consult with school counsel.  If abuse is suspected of a student under eighteen the guidance does, however, advise it be reported.

The updated advisory also notes the need to report abuse or neglect of disabled persons aged eighteen and over to the Disabled Persons Protection Commission (DPPC).

While the advisory previously discouraged districts from notifying parents or guardians of a DCF interview at school if the child could be placed at risk of further abuse or neglect, the updated advisory directs districts to consult with counsel regarding these questions.

The update emphasizes that reports of suspected abuse by school employees must be reported “immediately.”

The updated advisory can be found here: https://www.doe.mass.edu/lawsregs/advisory/child-abuse.html

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact one of the attorneys below.

This update is provided for informational purposes only and should not be considered legal advice.