A Free AND Ordered Space: School’s discipline for off-campus social media speech?

Part 4 of the series

By Allen Clendaniel, Sedor, Wendlandt, Evans & Filippi, LLC

During class, a high school student gets caught saying “F*** Principal Smith.  She’s a racist Karen!”  Clearly, the student can be disciplined.  Now, on Saturday night from his bed room, the student posts a video to his Instagram story where he dances and sings “F*** Principal Smith…..She’s a racist Karen.”  Can the student be disciplined for the off-campus social media post?

When I was in in high school, if I made an offensive juvenile joke to a close friend about a teacher or a fellow student, that was usually the end of it.  The bad joke ended with my close friend.  Now, an offensive joke or hurtful comment can be shared instantaneously to the entire student body.  A screen shot can then be re-shared to parents, teachers, and school administrators.  My teenage daughter has 860 Instagram followers. I don’t even know how many people she can reach through SnapChat.  From anywhere at any time, she can immediately communicate with hundreds of people.  That’s a freedom of expression that our Founding Fathers could never have imagined.    Social media presents real challenges to school districts who are trying to maintain an orderly educational environment, while not violating students’ free speech rights. 

In our March Commentary, Clint Campion previewed the Supreme Court case of  Mahanoy Area School District v. B.L. where the student challenged her discipline for off-campus social media posts.  Here are the relevant facts.   B. L. tried out for a position on the school’s varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior varsity team. B. L. did not take these events well. On Saturday, outside of a local convenience store, B. L. posted images to her Snapchat “story.”  The first image showed B. L. and a friend with middle fingers raised; it bore the caption: “F*** school f*** softball f*** cheer f*** everything.”  The second image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” B.L.’s  actual posts used the real f-word.

Unfortunately, for B.L., her “post” did not end with her 250 Snapchat friends.  One of her so-called Snapchat friends took a screen shot and shared with other cheerleaders.  Ultimately, B.L’s posts were shared with the daughter of the cheerleader coach.  The coach did not take it well.  After discussing it with the school administrators, B.L. was suspended from the cheerleading team for the rest of the year.   

Unfortunately, for the Mahonay Area School District, B.L.’s parents contacted the ACLU.  The ACLU filed a lawsuit on B.L.’s behalf in federal district court challenging her suspension.  The case made its way to the Supreme Court.  In June, the Supreme Court found 8-1 that the school district violated B.L’s constitutional rights. 

Writing for the majority, Justice Stephen Breyer concluded that the school’s interest in disciplining B.L. was low compared with her First Amendment free-speech rights. In balancing the student’s freedom of expression against the school district’s interest in maintaining order, Justice Breyer determined, at least as to this instance of off-campus social media speech, that the student’s freedom of speech was more compelling than the school district’s interest in order.  He identified “three features” of off-campus social media speech that dictated such an approach. 

  1. With regard to off-campus speech by students, school officials rarely stand in loco parentis.  “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.”
  2. Courts should be skeptical of school officials’ regulatory interest in policing student social media speech, given that such speech could take place anytime or anywhere during a 24-hour day.
  3. Schools have an interest in protecting even unpopular student speech, because “America’s public schools are the nurseries of democracy.”

Justice Breyer did not say, however, that school officials had no regulatory interests in off-campus student social media expression.  He emphasized that officials may retain regulatory interest in social media speech that constitutes cyberbullying, harassment, threats or breaches of school security devices.   

Mahanoy is a very significant student free speech case.  Yale law professor Justin Driver, noted “It’s the first time in more than 50 years that a public school student has prevailed in a free speech case at the Supreme Court.”  Professor Driver also stated, however, that  “Justice Breyer’s opinion for the court left many significant questions unanswered.”

So where does this leave Alaska school districts as they try to balance students’ freedom of expression and provide a safe and positive educational environment?  School districts have much more leeway in regulating and disciplining on-campus speech.  School officials must be careful, however, when disciplining students for off-campus speech.  The Supreme Court held that districts can discipline students for off-campus threats, harassment, and cyberbullying.  Off-campus criticism of school employees and use of vulgar language, however, most likely does not create a sufficient disruption to warrant discipline. 

The Supreme Court declined to give a bright line test for when a school district could regulate off-campus social media posts.  This leaves school officials in a difficult position.  Before disciplining a student for off-campus social media posts, school officials should be able to explain in excruciatingly detail how the student’s speech caused substantial disruption of learning-related activities or harmed other students.  Like my daughter, Alaskan students today communicate extensively through social media.  Some of that communication is positive and constructive.  Some of it is hurtful and disruptive.  Some of it is just vulgar, offensive and juvenile.  The Supreme Court has ruled, however that school officials must balance students’ right to off-campus freedom of expression against the school district’s interest in an ordered educational environment. 

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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.