If you’ve recently watched us present on hot topics or digital citizenship, or if you’ve kept tabs on our blog during the summer, you know that in June the Supreme Court issued its ruling in Mahanoy Area School District v. B.L., 594 U.S. ___ (2021). Since then, we’ve been discussing how this ruling will affect how our schools enforce activity codes of conduct and address threatening or bullying behavior. Now, a number of courts have also taken up these issues and the future under B.L. is coming into focus.
Quick Recap
In B.L., the Court ruled that the First Amendment prohibited a school district from removing a student from the cheer team for profanity-laced messages on Snapchat on the weekend when the student was off school grounds. Applying Tinker, the Court found that the District failed to demonstrate the student’s speech caused a material and substantial disruption. This was true even though the student agreed to specific team rules addressing the use of social media and comments disparaging the team. In reaching this conclusion, the Court indicated that regulating off-campus speech is subject to a heightened level of scrutiny for disruption, and that the ability to prohibit lewd and vulgar speech without disruption does not apply to off-campus behavior. The Supreme Court advised lower courts to be “skeptical” of school discipline for off-campus, online speech alleged to have caused disruption.
As a result, schools have had to pause when addressing off-campus speech, especially when enforcing activity codes of conduct that often apply 24/7. In many cases, speech that in the past would have violated the code of conduct, team rules, or a coach’s expectations can no longer be the basis for discipline, not even by informal means such as benching the student for a game. That is because the First Amendment prohibits schools from taking any adverse action against a student for protected speech or which may tend to “chill” the students’ willingness to speak. Indeed, the Supreme Court audaciously called public schools “nurseries of democracy” in an apparent effort to warn administrators that schools should encourage students to toe the line, not discipline them for it.
Inherently Disruptive Speech
The Court did, however, identify specific types of speech and conduct so inherently disruptive that the school’s ability to regulate it shouldn’t have to surpass the same heightened level of skepticism. Specifically, the Court noted that speech that constitutes “serious or severe bullying or harassment targeting particular individuals” is inherently disruptive and may be regulated by schools even if it occurs off-campus. This means that schools in South Dakota and Nebraska are not as limited by the B.L. holding and other First Amendment restrictions in implementing things like bullying policies required by state statutes in both states. Those types of misconduct tend to “invade the rights of others” to pursue an education, compared to obscene or disfavored political speech.
In South Dakota, the legislature has long recognized that schools have a significant interest in addressing bullying, including bullying that occurs online, off-campus, or outside of the school day. In fact, SDCL 13-32-18 provides that: “Neither the physical location nor the time of day of any incident involving the use of computers or other electronic devices is a defense to any disciplinary action taken by a school district for conduct determined to meet the definition of bullying . . .”
In Nebraska, the Student Discipline Act limits a school’s authority to impose long-term discipline in response to off-campus bullying, and short-term suspensions and other lesser consequences (detentions, activity suspensions, etc.) are still subject to the limitations of the First Amendment.
We suspect parents and students will challenge the breadth of the South Dakota bullying statute and lesser consequences imposed in Nebraska based on First Amendment limitations, including those imposed by the B.L. decision. But when the misconduct is tied to things like bullying or harassment, schools generally have more authority.
True Threats and Fighting Words
In B.L., the Court also recognized the special interest in addressing “threats aimed at teachers or other students.” This was recently addressed in A.F. v. Ambridge ASD, 2021 U.S. Dist. LEXIS 162835 (W. D. Pa. 2021). That case centered around SnapChat messages of a football player, A.F., sent in a group chat to his fellow players and coaches. After being confronted about not attending practices, A.F. replied with a series of harassing and threatening messages, including:
“Show up at practice to beat yo ass b****”
“Grab a f****** bottle and bash that s*** on your face til I see your brain b****”
“Send yo b**** a** to the father”
“It ain’t gib be stupid when yo a** dead”
“I sincerely wish death upon your soul”
These messages were followed by a picture of A.F. holding a gun, which was believed to be a real gun. A.F. was ultimately removed from the football team, and the student sued claiming that B.L. prohibited the school from disciplining him for his online, off-campus speech.
The federal court disagreed, and distinguished A.F.’s messages from the SnapChat story in B.L..
“[B.L.’s posts] were, no doubt, profane. Yet, they threatened nobody, did not allude to any actual or proposed danger to anyone, and could reasonably be construed as a crudely articulated commentary on the state of her cheer and softball programs. . . Here, A.f.’s communications were not merely profane, but they were actual threats. Much of the threatening language was directed, primarily, at one student, R.G. Rather than a generic ‘f*** school f*** softball f*** cheer f*** everything,’ . . . A.F.’s communications are threats, fighting words, and the very type of communications that the Supreme Court recognized as falling outside the protective scope of the First Amendment and, conversely, within the right of a school to regulate.”
Expression, Not Conduct
Just as the First Amendment does not protect true threats or fighting words, the First Amendment does not protect conduct that is not expressive or that is illegal. For example, in Cheadle v. North Platte R-1 Sch. Dist., 2021 U.S. Dist. LEXIS 153584 (W. D. Mo. 2021), a student was suspended from sports for 45 days after posting a video of herself on SnapChat consuming alcohol. The Student sued the school, arguing that her behavior was protected by the First Amendment. The court disagreed, noting that “when a minor consumes alcohol, she is engaging in an illegal act, not . . . speech.” The fact that the school found out about the drinking from an off-campus social media post did not protect the student, because the school was disciplining for the illegal conduct, not the speech.
The Future Under B.L.
As schools adjust to the new normal, it is important to be mindful of what the Court did, and did not, do when deciding B.L. Schools can still regulate off-campus speech as long as the school can actually demonstrate a material and substantial disruption. Additionally, the Court explicitly noted that some off-campus speech is so inherently disruptive that schools retain a special interest in regulating that speech, such as bullying and harassment. The Court did not limit a school’s ability to impose consequences when students engage in illegal behavior, alcohol, or drug use.
However, the Court did send a clear message that schools will be expected to make a strong showing of actual disruption before regulating speech that is merely offensive or profane.
We recommend that you review your regular and activity codes of conduct and consider as an administrative team how those will be applied to off-campus speech and behavior. We also recommend that you educate your coaches and sponsors about the limitations of their authority in responding to off-campus speech. Disparaging remarks about the team that may have led to disciplinary action in the past may now be protected by the First Amendment. Finally, we recommend that you contact your school attorney if you find yourself in the vast grey areas that remain, or call Karen, Steve, Bobby, Coady, Tyler, or Jordan, or shoot all of us an e-mail at ksb@ksbschoollaw.com.