Posted on July 27, 2020
Though the issue of student social media use in school has been somewhat curtailed by clearer school policies and educators’ diligence, what remains a challenge is how educators address off-campus online student speech that would otherwise be prohibited on campus.
Recent development – the Third Circuit says the ability of a school to punish lewd or profane speech disappears once a student exits school grounds.
A recent federal case out of Pennsylvania illustrates the growing controversy around the issue. In the case of B.L. v. Mahanoy Area School District, a school district’s punishment leveled against a cheerleader for engaging in profanity on a Snap did not pass legal muster.
The district barred high school cheerleader from the squad as punishment for her out-of-school speech. The district had established a code for cheerleaders which required the members of the squad to “respect their school, coaches, teachers, and other cheerleaders and teams…There will be no toleration of any negative information regarding cheerleading, cheerleaders or coaches on the internet.”
The cheerleader posted a Snap featuring a photo of her and a friend holding up their middle fingers with the text, “f*** school f*** softball f*** cheer f*** everything” superimposed on the image. The girls in the image were not wearing their uniforms and did not share the name of the school district. The school district invoked the above cheer code and dismissed B.L. from the squad.
The District Court granted summary judgment in B.L.’s favor, ruling that the school violated her First Amendment rights when it punished her.
Great! It is a question of where the student is physically when they make the offensive statement …got it!
Not so fast…while this decision illustrates how the issue is progressing in different courts, it does not really go to how the issue would be treated in the Ninth Circuit.
Recently, the Ninth Circuit ruled the analysis of whether a school has violated a student’s rights under the First Amendment rests more on the impact of the speech on the school then on where the conduct physically occurred.
As to whether speech is “off campus” the 9th circuit has held although public school students enjoy greater First Amendment protection of their freedom to speak when they are off campus than when they are on campus, their off-campus speech is not necessarily beyond the reach of a school district’s regulatory authority.
In March of 2019, the Ninth Circuit held in McNeil v. Sherwood Sch. Dist., that an Oregon school district did not violate a student’s First Amendment rights to free speech when it expelled the student due to a “hit list” of classmates found in the student’s personal journal.
The Ninth Circuit considered two questions when deciding the case. First, whether the school was permitted to regulate the student’s off-campus speech at all, since the journal was not school property and was not found on school property or by school employees, and second, whether the expulsion complied with the First Amendment standards established in the Tinker v. Des Moines Supreme Court decision.
The court held that the constitutionality of a school’s regulation of off-campus speech turns on
- (1) “the degree and likelihood of harm to the school” caused by such speech,
- (2) whether it was “reasonably foreseeable that the speech would reach and impact the school,” and
- (3) the “relation between the content and context of the speech and the school.”
Applying this test, the court found each prong satisfied in this scenario; the school’s assessment of credible harm was reasonable, the disruptive impact of news of the list was foreseeable, and the content of the speech certainly involved the school.
The fact that a substantial disruption to the school was reasonably foreseeable also supported the school’s position with regard to claims that it had violated the student’s First Amendment right to free speech. Under Tinker, schools may restrict speech that would “reasonably lead school authorities to forecast a substantial disruption.” Partly because the “hit list” identified specific individuals, the school district had reasonably foreseen that news of the list would cause significant safety concerns among both students and parents, and substantially disrupt their educational activities.
What educators need to know
In general, students have the right to freedom of expression unless it infringes on the rights of others, school safety, or interferes with the ability of a school to deliver its educational services and processes. Thus, off-campus online expression would be protected in the same way as traditional speech.
Student speech, whether online or offline, on-site or off-campus, is still plainly a First Amendment issue.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily at 406-542-1300 to discuss these issues.