Oral or Written Speech

Last September at the WASDA New Superintendents Academy, Kirk Strang presented on the topic of Student Rights and Responsibilities in the Era of Polarized Political Landscape.

This five-part series takes a deep dive into this topic with a focus on the different facets of student speech and expression, including:

• Part 1: Basic Principles, Seminal Case Law & Building Your Defense
• Part 2: Oral or Written Speech
• Part 3: Clothing
• Part 4: Prayer
• Part 5: Summary of Speech Schools Might Be Able to Regulate (Sometimes)

In Part 2 of the series, we’re covering student speech and expression as it pertains to oral or written speech with a focus on:

• Off-campus Speech
• Legal Considerations & Strategies

​​Student Speech & Expression: Oral or Written Speech

OFF-CAMPUS SPEECH

1. In General. 
   1. Off-campus speech is protected by the First Amendment.
      All other factors being equal, schools have relatively less ability to regulate off-campus speech. However, our Supreme Court has noted that certain types of off-campus speech might be deemed permissible for schools to regulate in the future, including speech:
      1. engaging in serious/severe bullying or harassment that targets particular individuals;
      2. threatening students or teachers;
      3. failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
      4. breaching school security devices, including material maintained within school computers.
   2. The U.S. Supreme Court has identified three features of off-campus speech, “that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech:”
      1. Schools should not stand in loco parentis; when off campus, students are under parent supervision.
      2. Schools regulating on- and off-campus speech would cause a 24-hour day restriction on student speech.
      3. Schools should serve as “nurseries of democracy” in protecting student expression, even if unpopular.

2. Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021). 

   B.L. failed to make the varsity cheerleading team at her school. Out of school, she posted on Snapchat “Fuck school fuck softball fuck cheer fuck everything.” Students complained to coaches that it violated team and school rules. B.L. was suspended from the JV team for one year. She and her parents sued, alleging violations of her First Amendment rights and that the rules were overbroad, viewpoint discriminatory, and unconstitutionally vague.

   Holding/Reasoning:

   • B.L.’s speech was off-campus speech, protected by the First Amendment.
   • B.L.’s speech, though crude and critical of school and school programs, did not involve any of the preceding types of speech, did not mention the school or individuals by name, and caused very little class disruption. Additionally, she was outside of school and school hours, using her personal cell phone, and messaging personal contacts.
3. Cyberbullying. 

   1. Certain off-campus behavior warrants school regulation, namely “serious or severe bullying or harassment” that invades the rights of others.

      Bullying speech is not limited to speech which directly bullies others. It includes speech that encourages direct bullying by others.

      1. In Doe v. Hopkinton Public Schools, the First Circuit Court of Appeals held that student speech and conduct which encouraged direct bullying by others was not protected under the First Amendment.

      2. Speech that constitutes, encourages, or contributes to bullying is not constitutionally protected.

         Doe v. Hopkinton Public Schools, 19 F.4th 493 (1st Cir. 2021).

   2. Social media can be a primary source of bullying. Nevertheless, school districts have to link bullying behavior to circumstances where the district has legal jurisdiction, and do so while our courts seem increasingly protective of speech, particularly off-campus speech.
      1. Cyberbullying can originate off campus, but there must be a nexus with the campus for a school district to suspend or expel.
      2. Cyberbullying is a function of content/behavior and frequency, just as routine bullying is. However, the magnitude and proliferation of cyberbullying tactics may have different (and often more brutal) effects.
      3. When investigating, remember that the bullying policy may also apply to the conduct at issue (deadlines, communications requirements, etc.).

LEGAL CONSIDERATIONS AND STRATEGIES

1. Nexus to school or district.
   Our courts have demanded that school districts demonstrate how off-campus conduct is the school’s business. Establishing a nexus to the school is or, at least, seems likely to be increasingly important in free speech cases. 
   1. Is off-campus speech directed at individuals at school, the school itself, or school officials?
   2. Did a student use a school district device (or send to school district addresses/recipients) to access social media sites?
   3. Did the social media activity take place during school hours? Did it circulate at school (and did this occur deliberately and/or was it reasonably foreseeable)?
   4. Did the piece on social media mention the district or its school buildings, by name or implication?
   5. Did the social media posting/messaging substantially disrupt the school environment?
2. Behavior clauses in co-curricular codes.
   Review athletic/extracurricular codes of conduct and district policies regulating off-campus speech in light of the Mahanoy decision. Traditionally, alcohol, other drugs, and tobacco were prohibited, and additional prohibitions varied from district to district. 

   1. Scope of “free speech” rights. While Mahanoy was unsettling to many, the decision is not without limits. The Court was asked whether a student’s First Amendment rights could be restricted by a co-curricular code and, if so, to what degree. The Court concluded that they could not be restricted in circumstances where a student’s off-campus, profane rant posted on social media (messaging) did not meet the standards the Court has established, when applied in a co-curricular context. 

      Thus, speech and expression are protected, but conduct prohibited by a co-curricular code is not necessarily equally protected, unless the conduct itself rises to the level of Constitutionally protected expression.

   2. Off-campus conduct. Regulating private, personal conduct that is outside the school day and off school grounds. If the district regulates such conduct:
      1. Determine whether speech or expression is involved. If so, the district will have to show that the speech or expression can be regulated because of its content (e.g., speech that includes a true threat) time, place, and/or manner, or — at the very least — that it is not protected speech.
      2. Does the conduct offend or violate policy values that the district is trying to impart? For example, we know that school district policies and programs to promote wellness and discourage illegal drug use can be invoked to sanction speech (e.g., the “Bong Hits for Jesus” case).
      3. Find conduct unrelated to speech that is rational to prohibit or regulate.
      4. Be careful about claiming disruption based on speech that challenges, lampoons, or speaks against the school board or administration on a current issue. Free speech can be “disruptive” in the sense it may encourage others to question school authorities, but this may be what our courts are trying to defend.
3. Prohibited Speech.
   Enforce discrimination, harassment, and bullying policies when speech creates a hostile educational environment.

   1. On-campus use and contributions to social media are, of course, more easily regulated because, e.g., we have proof that the speech was sent to school, circulated there, or did, in fact, become a source of disruption at school. 

      NOTE: Whenever possible, make sure that your policies on harassment, discrimination, and bullying make specific statements to the effect that the board has evaluated the subject situation, and has concluded that the conduct identified is disruptive. 

   2. All indications are that school districts can be more aggressive with regulating off-campus speech on social media that runs afoul of these policies; policies which themselves protect student rights at school.

This concludes Part 2 of the series. In Part 3, we’ll dive into student speech and expression as it pertains to clothing — specifically student clothing case law.

Additional articles based on WASDA Conference presentations that may be of interest:

• School Contracts with Vendors, Construction Companies & Architects
• Administrator Contracts and Contract Renewal