Students can expect discipline for more than just obvious misconduct on campus; they can also be disciplined for their speech. Educators are often faced with situations where they need to decide whether to discipline students for harsh abuse and harassment, defamation or threats. Educators also sometimes need to consider the appropriate response to inflammatory speech that may occur on or off campus.
In considering whether to discipline students for speech, public school districts must consider the considerations of the First Amendment. This is because public educational institutions are state institutions and are therefore bound by constitutional standards when dealing with the public, including their own students.
On June 21, the US Supreme Court gave educators extensive guidance on how to apply these standards, and specifically how to apply them to student speech on social media and off-campus. In the Mahanoy Area School District v. BL, the court ruled that a high school violated a cheerleader’s First Amendment rights by punishing her for a short, mundane Snapchat post she made off-campus on a Saturday.
The offensive post
In Mahanoy, a Pennsylvania public high school student, frustrated with her inability to advance in cheerleading, posted a picture of herself on Snapchat with the caption (with the offensive words): “F ____ school f_____ softball f_____ cheer f______ everything. “The picture could be seen by about 250 people, including fellow students and cheerleaders. The coaches found out about the post and decided that it was against the team and school rules. They suspended BL from the cheerleading team for a year.
The Supreme Court began its discussion of standards by reformulating the general rule from its previous precedent about when a school can discipline a student for speech on campus in accordance with the First Amendment. This can happen in the case of speeches that “significantly disrupt class work or lead to significant disruption or interference with the rights of others”.
The court then indicated that the ability to discipline by that standard for off-campus speech may apply in certain circumstances. The court cited “serious or serious bullying or harassment targeting specific individuals; Threats against teachers or other students; Failure to comply with any rules regarding teaching, homework writing, using computers, or participating in other online school activities; and violations of the school’s security devices, including material kept on school computers. “
More protection for language outside of campus
The court suggested that, in general, off-campus speech should be protected by the First Amendment rather than on-campus speech. Three typical characteristics of off-campus language were then described that “reduce the strength of the unique pedagogical characteristics that may require special latitude in the First Amendment” to allow for discipline.
First, when it comes to off-campus language, schools will seldom become “in loco parentis”, “in the place of the pupils’ parents in circumstances where the children’s actual parents cannot protect, guide and discipline them”. The court therefore suggested that discipline is more appropriate in cases where the school is “in loco parentis”.
Second, regulating language off campus would mean monitoring students 24 hours a day, thereby limiting students’ ability to express themselves. On this point, the court gave advice for future cases: “When it comes to political or religious speech outside of school or a school program or activity, the school will find it difficult to justify intervention.”
Third, the court stated that “the school itself has an interest in protecting a student’s unpopular utterance, especially if the utterance is made off-campus”. The court stated:
America’s public schools are the kindergartens of democracy. Our representative democracy only works if we protect the “marketplace of ideas”. This free exchange facilitates informed public opinion which, when conveyed to the legislature, helps produce laws that reflect the will of the people. This protection must include the protection of unpopular ideas, because popular ideas need less protection.
The court applied these standards to the student BL’s case and eventually concluded that the First Amendment protected her speech.
It is worth noting that the Mahanoy ruling applies to private high schools in California. California’s “Leonard Act”, passed in 1992, gives high school students in private schools (and, to a limited extent, private religious schools) the right to freedom of expression. Interpretation of the case law governing the application of the First Amendment to the Public Schools is important in determining the legal rights to freedom of expression that high school students can exercise in private schools in California.
Although the Mahanoy Supreme Court clearly focused on the speech of K-12 students, the case will also be relevant to consider protecting the speech of students at public colleges and universities, which is also bound by the First Amendment are.
This applies in particular to the discussion by the Supreme Court on the extent to which speech outside the campus can reduce the ability of an institution to act. In California, even private colleges and universities must watch out for Mahanoy’s involvement, as the state’s Leonard Act, described above, gives students at these institutions legal rights to freedom of expression.
Only about once a decade does the US Supreme Court rule on a case involving the rights of the first addition of students. This year’s decision in the Mahanoy case provides essential guidance in this area of law.
This column does not necessarily represent the opinion of the Bureau of National Affairs, Inc. or its owners.
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David Urban is Senior Counsel at Liebert Cassidy Whitmore, representing organizations, public and private educators, and public authorities on all aspects of labor and labor law, including alleged discrimination and retaliation, disabled accommodation, data protection, trade secrets, first amendment, and wage breaches. and Working Hours Act.
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