In September, Kirk Strang presented on Student Speech & the First Amendment at the WASDA fall conference. In this series, we’re covering all of the topics Kirk discussed in an effort to help Wisconsin school districts be more informed on the subject.
In Part 1 of the series, we covered how to be prepared in a polarized political landscape, and in Part 2 we focused on student speech and expression.
In Part 3 of the series, we’re diving further into student speech and the First Amendment — this time, as it pertains to off-campus oral or written speech.
OFF-CAMPUS SPEECH
In General.
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:
- Engaging in serious/severe bullying or harassment that targets particular individuals;
- Threatening students or teachers;
- Failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
- Breaching school security devices, including material maintained within school computers.
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”:
- Schools should not stand in loco parentis; when off campus, students are under parent supervision.
- Schools regulating on- and off-campus speech would cause a 24-hour day restriction on student speech.
- Schools should serve as “nurseries of democracy” in protecting student expression, even if unpopular.
Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).
B.L. failed to make the varsity cheerleading team at her school. While out of school, B.L. posted on Snapchat, “Fuck school fuck softball fuck cheer fuck everything.” Students complained to coaches that the post 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.
Cyberbullying.
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.
- 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.
- Speech that constitutes, encourages, or contributes to bullying is not constitutionally protected.
Doe v. Hopkinton Pub. Schs., 19 F.4th 493 (1st Cir. 2021).
- Cyberbullying can originate off campus, but there must be a nexus with the campus for a school district to suspend or expel, i.e., 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).
- 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.
- When investigating, remember that the bullying policy may also apply to the conduct at issue (deadlines, communications requirements, etc.).
In Chen v. Albany Unified School District, 56 F.4th 708 (9th Cir. 2022), a group of high school students shared posts on a private Instagram account, which included “disturbing posts that targeted vicious invective with racist and violent themes against specific Black classmates.”
After the posts began to circulate among students at school, and multiple students became too upset to attend class, the students responsible for the account were expelled. The students sued, arguing that the district violated their free speech and due process rights.
The Court concluded that the speech “bore a sufficient nexus” to the school and its students. The posts caused significant disruption at school, particularly with those students who were targeted in the posts. Although the creator of the account attempted to keep it private, it was reasonably foreseeable that the content would eventually reach the school. As a result, the District’s discipline did not violate the students’ free speech rights.
Nexus to the 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.
- Is off-campus speech directed at individuals at school, the school itself, or school officials?
- Did a student use a school district device (or send to school district addresses/recipients) to access social media sites?
- 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).
- Did the piece on social media mention the district or its school buildings, by name or implication?
- Did the social media posting/messaging substantially disrupt the school environment?
Prohibited Speech.
Enforce discrimination, harassment, and bullying policies when speech creates a hostile educational environment.
On-campus use of 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.
- All indications are that school districts can be more aggressive with regulating off-campus speech that runs afoul of these policies; policies which themselves protect student rights at school.
In Part 4 of our series, we’ll continue the discussion on student speech and the First Amendment with a focus on clothing.
Until then, you may find these articles of interest: