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From the First Amendment to Final Exams: How Digital Crises Are Striking Schools

June 24, 2021


First Amendment law has struggled to stay apace with the ways in which people—especially teenagers—communicate. But while student speech rights may be an interesting Constitutional question for lawyers and scholars, schools confront the myriad methods of student speech on a regular, and decidedly non-theoretical, basis. The lack of consistent guidance from the courts regarding schools’ authority to discipline students for arguably harmful online speech has left administrators unsure of their options and vulnerable to litigation.

Thus, there was great hope for clarity when the U.S. Supreme Court granted review of the U.S. Court of Appeals for the Third Circuit’s circuit-split-creating holding in B.L. v. Mahanoy Area School District, 964 F. 170 (3d Cir. 2020), that seminal student-speech case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), does not apply to students’ “off campus” online speech. The Supreme Court’s decision, which affirmed the Third Circuit’s ruling but not its reasoning, will likely raise even more questions (and litigation) as the Court declined to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”

Instead of defining a broad rule addressing off-campus speech, the Court listed “three features” of such speech, which “often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” The Court explained that those “features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” and thus limit a school’s authority to punish student speakers. The “features” identified by the Court are: (1) schools rarely stand in loco parentis in relation off-campus speech; (2) if a school can regulate off-campus speech in the same manner as on-campus speech, then all of a student’s speech is regulated, and a school will have a heavy burden to justify regulating off-campus political or religious speech in particular; and (3) schools, as the “nurseries of democracy” have “an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” The Court left for “future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.” However, in the case before it, the Supreme Court had no problem determining that the school district overstepped its authority to regulate B.L.’s off-campus speech.

The facts of Mahanoy are almost routine in our digitized America: a disgruntled high school student posted a profanity-laden Snapchat, the message of which, while technically posted off-campus and outside of regular school hours, nevertheless reached students and faculty alike. Administrators disciplined the student pursuant to existing school policy prohibiting, among other things, foul language. Suit ensued. And kept going for nearly four years.

Could this years-long litigation have been avoided with circumstance-based crisis management counsel? The answer is almost certainly “yes.” The school district—from the school board to the cheerleading advisors—may not have been aware that it was stepping into a legal minefield when it punished B.L. for her off-campus speech. A digital crisis attorney could have worked with the school district to create a response that would have allowed it to minimize the disruptive impact of B.L.’s post while avoiding the violation of her constitutional rights. As it happened, however, the school district caused much more disruption—even before litigation commenced—than the post itself ever could have done.