Education Brief: Supreme Court to Reconsider Student Speech in the Digital Age, with Possible Title IX Implications

Photo by Brooke Cagle on Unsplash

Early last month, the United States Supreme Court announced its intention to hear a case involving the intersection of student speech and social media use outside of the schoolhouse.

The Court has left First Amendment matters of student speech largely untouched over the last five decades — the Court’s landmark 1969 decision in Tinker v. Des Moines set the standard for evaluating whether schools can take action against students for speech.

In Mahanoy Area School District v. B.L., the Court will address the issue head on. The case involves a 2017 incident where a female student enrolled as a high school sophomore was disciplined for posting a message on Snapchat that said “F**k school … f**k cheer f**k everything.” The student posted the message on a weekend after learning that she had been assigned to the junior varsity cheerleading team instead of the varsity squad.

“Snaps” disappear after a time on the Snapchat platform, but a teammate saved a screenshot of the post and shared it with the JV team’s coaching staff. The athletics department removed the student from the team in response to her foul language and display of disrespect, and the decision was upheld by the administration and the district school board. The student’s parents sued, contending that the district’s rules were unconstitutionally vague and overbroad. The student won in federal district court, and the decision was upheld by the Philadelphia-based Third Circuit Court of Appeals last June.

The decision in the Third Circuit has set up a showdown, as five other federal Circuit Courts of Appeal and the Pennsylvania Supreme Court have held that schools may discipline students for off-campus conduct and speech. According to an amicus brief filed by the National School Boards Association, as summarized in a recent Education Week article on the upcoming B.L. hearing, “[t]he 3rd Circuit’s stark line between off-campus and on-campus speech is untenable, especially in the age of social media,” the brief says. “It is now unclear if schools can regulate, among other things, racist, vulgar, or sexually harassing speech that occurs online and off campus, even if that speech is directed at other students or school administrators, and even if it is otherwise reasonably likely to materially disrupt on-campus life.” The NSBA brief goes on to note that line between the campus and the outside world has been further obscured in the age of online learning — a frustration for school administrators trying to maintain order in virtual classrooms and positive wellbeing for students learning from home during the current pandemic.

The American Civil Liberties Union is representing the student and her parents, and have the benefit of five decades of prevailing precedent to support the student’s claims that her speech was constitutionally protected. Under the leadership of Chief Justice John Roberts, the Court has steadily upheld free speech claims in recent years. However, a recent New York Times article previewing the upcoming arguments noted that the Court has been somewhat lax in its defense of student speech — in 2007, the Court sided with a school in suspending a student who displayed a banner labeled “Bong Hits 4 Jesus.”

Title IX Implications. For school administrators and Title IX practitioners, the B.L. decision will be closely watched. In the Tinker era, institutions have been adrift with little clarity in dealing with discipline related to online sexual harassment claims. Title IX regulations require that conduct occur in a school program or activity, which may or may not occur on campus. Speech in the digital age creates further uncertainty for administrators seeking to enforce regulations and related policies in a compliant manner, and serves a timely reminder that counsel should always be consulted in drafting policies related to speech and prior to issuing discipline involving off-campus or digital conduct.

The Court is expected to hear arguments later this Spring, and a decision may come as soon as June 2021.

Michael Loconto is a Boston-based attorney and consultant who helps school administrators think through Title IX regulations and student conduct matters. If you like what you read, follow Mike on Medium and subscribe through Substack.

Boston, MA attorney and consultant specializing in labor and employment law, dispute resolution and government relations.

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