SCOTUS ruling protects off-campus student speech

The members of the Supreme Court, front row, from left, Associate Justice Samuel A. Alito Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts Jr., Associate Justice Stephen G. Breyer and Associate Justice Sonia Sotomayor; back row, from left, Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch and Associate Justice Amy Coney Barrett.

ROCK HALL — Last month, the Supreme Court issued a ruling preserving free speech protections for students, while also maintaining that administrators could take disciplinary actions should actions — even those occurring off campus — create a substantial disruption of school activities.

The near unanimous decision in Mahanoy Area School District v. B.L., a minor, by and through her father, Levy, et al. was handed down June 23, with Justice Stephen Breyer penning the majority opinion.

Justice Samuel Alito offered a separate concurring opinion, on which Justice Neil Gorsuch signed on. Justice Clarence Thomas was the sole member to dissent.

In the case, B.L. tried out for the varsity cheerleading squad at the end of her freshman year, but was offered a place on the jayvee team. While at a convenience store with a friend that weekend, she posted her thoughts on the social media app Snapchat, which then deletes story posts within 24 hours.

B.L. reportedly vented her frustration over not making varsity cheerleading as well as not getting right fielder for a private softball team with a series of f bombs directed at school, softball, cheer and “everything” and featuring a photo of her and her friend giving the phone camera the finger.

She was suspended from jayvee cheer for a year, despite apologies to administrators. This led to a lawsuit filed in federal District Court, which B.L. and her family won, and an appeal that affirmed the lower court ruling.

Breyer wrote that is was the school district that petitioned the Supreme Court for a decision on whether prior precedent regarding public schools’ ability to regulate student speech extends off campus.

“The school’s regulatory interests remain significant in some off-campus circumstances,” Breyer wrote in the majority opinion, while backing away from agreeing to any definitive set of examples. “Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list.”

For Kent County Public Schools Superintendent Karen Couch, one could argue that the discipline meted out, when taken at face value, was an overreach. She agrees with the general opinion of the court.

Couch was joined by KCPS Director of Teaching and Learning Gina Jachimowicz and Supervisor of Student Services and Secondary Education Tracey Williams in a joint interview late last month on the case.

The three administrators spoke June 29 about how in determining whether student speech including social media posts calls for administrative action, the language used would need to create a sizable classroom disruption, constitute a serious threat or be a case of bullying.

“We have a really high bar, if you will, for how we try to tie back social media and those kinds of posts,” Couch said.

Queen Anne’s County Public Schools Supervisor of Student Services Matt Evans said in a July 1 email that the Supreme Court case is an interesting one. He wrote about how the Maryland Association of Boards of Education (MABE) has previously offered insights into such issues of free speech and technology.

“In the legal updates I have received over the years, MABE has advised that school systems can only take disciplinary action if there is a ‘nexus’ between the social media post, text, etc. and the normal operations of the school day,” Evans wrote.

He said that if the social media post originates outside of school, but creates a disruption to school operations the next day and going forward, “the school can then act.”

“In this Supreme Court case, it seems it was determined that the social media post did not create a disruption and the school’s action violated the student’s right to free speech,” Evans wrote.

Couch said that in reading about the case, the key word for her was whether or not the social media post constituted a “substantial” disruption to school activities.

“We don’t just arbitrarily discipline students based on what they post on social media,” Couch said. “Every situation is unique and every child is unique.”

She spoke about how much goes on behind the scenes in looking at these sorts of cases in Kent County’s schools, with a lot of thought and discussion among staff.

Breyer broke down the argument into three ways of differentiating how schools can regulate on- and off-campus speech.

The first deals with the doctrine of in loco parentis, allowing schools to stand in for parents and guardians “under circumstances where the children’s actual parents cannot protect, guide and discipline them,” Breyer wrote. He said dealing with off-campus speech would normally fall to parents and guardians from just a geographic standpoint.

Breyer next wrote that if a school can regulate a student’s speech both on and off campus, that could include “all the speech a student utters during the full 24-hour day.”

“That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention,” he wrote.

Third is, as Breyer wrote, that schools have an interest in protecting students’ “unpopular expressions, especially when the expression takes place off campus.”

“America’s public schools are the nurseries of democracy,” Breyer wrote. “Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”

He noted that the quote he included is attributed to Voltaire but more likely came from Evelyn Beatrice Hall, an English writer.

Breyer wrote in the majority opinion that taking together these three features of off-campus speech diminishes the First Amendment leeways granted to schools.

He wrote that while the court will take its leave of deciding “where, when and how these features mean the speaker’s off-campus location will make the critical difference,” to future cases, this particular one can provide an example for school systems.

“B.L.’s posts, while crude, did not amount to fighting words,” Breyer wrote. “To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

In addition, Breyer held that the was no evidence entered into the record of that B.L. caused a substantial disruption to school activities.

“Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days’ and that some members of the cheerleading team were ‘upset’ about the content of B. L.’s Snapchats,” Breyer wrote.

Alito, in his separate concurring opinion, raised a question of distinction.

“Why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school?” Alito wrote.

He wrote that had B.L. been in private school, “(t)he Commonwealth of Pennsylvania would have had no legal basis to punish her and almost certainly would not have even tried.”

“So why should her status as a public school student give the Commonwealth any greater authority to punish her speech?” Alito asked.

Alito wrote that it likely boils down to a matter of express or implied consent from parents for public schools to have authority over their children. He said that does not mean parents “implicitly relinquish” their own authority, though.

“There are parents who would not have been pleased with B.L.’s language and gesture, but whatever B.L.’s parents thought about what she did, it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity,” Alito wrote.

“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” he concluded.

Thomas, in his dissent, cited cases and historical precedents as far back as the 1800s. He said that “(a) more searing review reveals that schools historically could discipline students in circumstances like those presented here.”

As supervisor of Student Services, the administrative wing of KCPS that handles disciplinary actions, Williams said cases involving social media or other forms of off-campus speech can result in mediation between students, a parent-teacher conference or more severe measures including suspension or expulsion.

QACPS student discipline regulations also include a range of potential actions, with “sending incendiary texts/social media posts” falling under disruption, and part of the subgroup that includes “throwing harmful items” and “disrupting a fire drill.”

The response levels listed in the QACPS regulations for those types of disruptions range from a written apology, detention or talking with a school counselor to short-term suspension from one to three days.

Speaking on behalf of KCPS, Williams said State of Maryland regulations on student discipline provide administrators guidance based on aspects of each incident. She said the most severe disciplinary actions would require that a student “go way over the line.”

Jachimowicz and Williams spoke about how developmental levels are factors as well. Williams said state student discipline recommendations delineate between elementary and secondary students.

Jachimowicz said the ultimate goal is to help students be successful, whether interventions are required for academics or behavior. She said principals need to have the background to address student issues in a developmentally appropriate way.

Williams said that while there is so much looked at when it comes to considering such cases, ultimately the way in which the school system handles them must be equal across the board. She said it amounts to a fine line.

The KCPS administrators said a lot of the reporting on student speech, especially in the realm of social media, comes from students and parents.

Williams said students are encouraged to bring to an adult anything they see or hear that could pose a serious disruption or safety issue. She said there has been a concerted effort to build a “community of trust” within the schools so staff can be proactive.

“We can’t prevent it if we don’t know about it,” Williams said.

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