President Joe Biden’s administration has joined with school board and education administrator groups in supporting a Pennsylvania school district in a major U.S. Supreme Court case on whether students may be disciplined for off-campus internet speech.
The administration and others filing friend-of-the-court briefs in (Case No. 20-255) stress the need for schools to be able to respond to threats of violence as well as speech that bullies other students. And they argue that the prevalence of remote learning due the the COVID-19 pandemic makes it all the more important that the authority of school officials be clarified.
“When it comes to online activity—especially salient during the current pandemic—many of students’ contacts and social-media ‘friends’ are likely to be fellow students, so anything they post online reasonably could be expected to ‘reach’ the school,” says the by Acting U.S. Solicitor General Elizabeth B. Prelogar.
The merits briefs by the school district and its supporters come in a case over the discipline of a high school student who posted a vulgar message on Snapchat in 2017 a dispute involving her cheerleading team. The then-sophomore student, identified in court papers as B.L., posted a message on Snapchat one Saturday night that said “F*** school ... f*** cheer f*** everything” after she was placed on the junior varsity cheerleading team instead of the varsity squad.
The “snap” came to the attention of cheerleading coaches at Mahanoy Area High School, who said it violated team and school rules. B.L. was removed from the JV team for the season, a decision upheld by administrators and the school board. The student sued under the First Amendment, winning in a federal district court and in the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.
The appellate court last year interpreting the U.S. Supreme Court’s landmark 1969 decision in , which upheld student speech as long as school was not substantially disrupted. The 3rd Circuit court said in the Mahanoy case that Tinker categorically did not apply to off-campus speech, and thus schools could not discipline “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
‘The ubiquity of smartphones’ is an issue
The Supreme Court granted review of the Mahanoy district’s appeal of that decision in January. The court could hear arguments in the case in April and issue a decision by this summer, though the justices have not yet set the schedule for the court’s April argument session and there is a chance the case could be bumped over to next term.
The Mahanoy district argues in its main brief that the First Amendment does not prohibit schools from disciplining student off-campus speech that is directed at the school campus and is substantially disruptive.
“The ubiquity of smartphones, plus the added complexity of the COVID remote-learning environment, makes the decision below” unjustifiable, the district’s brief says. “Wherever student speech originates, schools should be able to treat students alike when their speech is directed at the school and imposes the same disruptive harms on the school environment.”
The Biden administration, in its brief, says that “the broad range of speech engaged in by students when off campus is beyond the proper purview of school officials” and “there is good reason to be wary of any rule that would permit an overbroad opportunity for the discipline of such speech.”
But the administration agrees that the 3rd Circuit’s categorical rule is incorrect. It argues that among the categories of off-campus speech that could justify regulation by school officials is speech by an extracurricular participant that targets teammates or threatens team cohesion.
The National School Boards Association, joined by the National Association of Elementary School Principals, the National Association of Secondary School Principals, and AASA, the School Superintendents Association, that Tinker gives school officials the authority to discipline “disruptive” behavior regardless of whether it is on-campus or off-campus.
“The 3rd Circuit’s categorical rule is especially ill-suited for today’s social media age,” the NSBA brief says. “69ý can disrupt the school community from anywhere simply by hitting send, and the same tweet, Instagram post, or you name it will have the same impact no matter where it was sent.”
A and other groups emphasized the prevalence of online bullying among students and the need of schools to be able to respond regardless of where the bullying originated.
Scholars Propose a Test
The National Education Association that does not support one party or the other in the Pennsylvania dispute, but argues that schools must be able to respond to threats and harassment that disrupt the school environment.
“Warning signs of the next school shooting can appear in off-campus student speech,” the NEA brief says. “If school officials cannot respond to signs that portend a threat to safety, the learning environment at school will suffer.”
And a group of First Amendment and education law scholars, that also supports neither party, argues the 3rd Circuit’s categorical rule went too far and school officials should be allowed to regulate online student speech that has a close nexus to school grounds and is reasonably likely to cause substantial disruption at school. But under these scholars’ test, school officials would not be able to discipline speech that is “bona fide commentary” on matters of public concern or critiques of the school or officials.
“Giving school officials power to censor bona fide online commentary raises serious questions about the suppression of student dissent from the school’s chosen educational mission,” the scholars’ brief says. “It invokes the specter of signaling to students that they cannot express bona fide disagreement with what is happening at school, even when they use their own device at home, not on school time.”
B.L. is represented by the American Civil Liberties Union, which has argued that the student’s Snapchat message was a “spontaneous, non-threatening, non-harassing” expression of her frustrations over cheerleading that should not subject her to school discipline.
B.L.’s merits brief, as well as briefs from her allies, responding more fully to the arguments of the school district and the other newly filed briefs are due at the high court in about a month.
