Can Schools Punish Students for Off-Campus Speech?
Social media makes the line much harder to draw.
The NYT‘s Adam Liptak summarizes a case before the US Supreme Court (“A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown“):
It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania was having a bad day. She had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.
The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.”
Though Snapchat messages are ephemeral by design, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”
The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.
Next month, at its first private conference after the holiday break, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.
While the case is seemingly rather silly—and likely moot by this point, as the student would be a senior now and there’s almost certainly no team to cheer for this year—the stakes are high:
In urging the justices to hear the case, the school district said administrators around the nation needed a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school. “The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district said. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”
How they will decide is not at all clear.
Justin Driver, a law professor at Yale and the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” agreed with the school district, to a point.
“It is difficult to exaggerate the stakes of this constitutional question,” he said. But he added that schools had no business telling students what they could say when they were not in school.
“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he said. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”
While I have complicated views of schools being in the business of teaching values and otherwise taking on parental roles, I understand the need to maintain decorum and discipline in the classroom. But fully endorse Driver’s argument that students ought to be able to speak freely, including on social media, while on their own time.
But, of course, that doesn’t mean that said speech is free of consequences. If she’s publicly spewing vulgar epithets at her coach, it’s not completely unreasonable for the coach to suspend her from the team.
I can’t imagine anyone coming to the defense of a student who used racial or sexist or anti-LGBTQ messaging against school authority figures or fellow students on their social media platforms. Indeed, most would argue that their presence creates a hostile or unsafe environment.
Where one draws that line—would pro-Trump tweets or Instagram posts qualify?—is incredibly problematic. But few would argue that there is no line.
Precedent isn’t of much help:
The key precedent is from a different era. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War but said disruptive speech, at least on school grounds, could be punished.
Making distinctions between what students say on campus and off was easier in 1969, before the rise of social media. These days, most courts have allowed public schools to discipline students for social media posts so long as they are linked to school activities and threaten to disrupt them.
And the 3rd Circuit opinion isn’t likely to be embraced as precedent:
A divided three-judge panel of the Third Circuit took a different approach, announcing a categorical rule that would seem to limit the ability of public schools to address many kinds of disturbing speech by students on social media, including racist threats and cyberbullying.
In a concurring opinion, Judge Thomas L. Ambro wrote that he would have ruled for the student on narrower grounds. It would have been enough, he said, to say that her speech was protected by the First Amendment because it did not disrupt school activities. The majority was wrong, he said, to protect all off-campus speech.
I can’t imagine the Supreme Court saying schools have no interest in protecting students from actual threats and bullying conduct, which are clearly not protected speech. True, law enforcement could take on those cases rather than the schools. But in the era of “defund the police,” do we really want to get the cops involved in settling social media disputes between teenagers?