Sprinkles in Support of Mahanoy High School

These folks contend the First Amendment does not prohibit schools from disciplining students for off-campus speech that is directed at the school campus and is substantially disruptive. Many are concerned the ruling will fail to grant schools enough authority to respond to threats of violence or adequately protect students against bullying and harassment from classmates.

“This case is not about a teenager and her speech rights,” said Holden, who is also the co-author of an amicus brief that has been filed with the U.S. Supreme Court that proposes specific standards under which public K-12 schools may regulate off-campus speech such as messages sent or posted via social media. “This case is about the collision of free speech and cyberbullying – racial bullying, gender bullying, LGBTQ bullying – and what recourse schools have in stopping abusive online behavior committed by students against other students, teachers and administrators that occurs online.

“The bigger issue at stake is this: Will school administrators be given clarity on the issue of what constitutes punishable cyberbullying by public school students and what should be protected speech?” Holden said. “That’s the real issue.”

If the Supreme Court upholds the 3rd Circuit’s decision, then a public school student using a racial epithet online, for example, or even across the street from the school, would be constitutionally protected, and the school district would have no recourse to discipline the student, Holden said.”

Phil Ciciora, University of Illinois News Bureau

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, argues in a brief 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. “Students 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.”

Newsdesk at Education Week, NOT an opinion (chosen because it aggregates direct quotes of arguments in favor of the school – please note Education Week is not explicitly in favor of any side nor is this an indication of any bias)

“A case to be argued before the U.S. Supreme Court April 28 presents one of those rare instances in which different LGBTQ groups are on opposite sides… Some argue that schools need the authority to discipline students for inappropriate messages even when those messages are delivered off-campus and after school. Others say students need protection from school authorities overreaching into the personal views and expressions of students…

…Joining several other anti-bullying organizations, Garden State Equality, the Tyler Clementi Foundation, and Stomp Out Bullying — which focus on LGBTQ issues — all submitted a brief on the side of the Mahanoy school district. They noted that a study found that more than 80% of LGBTQ youth reported being bullied or harassed at school. ‘There must be a clear and unmistakable pronouncement that school officials may take reasonable measures to curtail peer bullying that negatively impacts students’ ability to access their education, wherever and in whatever form it takes place,’ they stated…

… Gary Buseck, senior adviser with GLAD and a 35-year veteran of LGBTQ litigation, acknowledged that ‘it seems odd’ that the pro-LGBTQ briefs stand in support of different sides of the appeal.

‘However, my sense is that all of the parties on these three specific amicus briefs are actually in agreement on one issue, i.e., that school boards have to be allowed to deal with bullying and harassment that occurs off-campus but that impacts a student’s life in school and educational opportunities and experience,’ said Buseck. All three briefs, he said, ‘are concerned less about the facts of this case and its bottom-line result than about possible dangers in the 3rd Circuit opinion bearing on how school must be allowed to address bullying/harassment.’”

Lisa Keen, Bay Area Reporter

Sprinkles in Support of B.L.

These folks recognize that schools have the right to discipline students for speech on school grounds, but contend that authority should not be extended to an off-campus platform where First Amendment protections are well established – though many support schools having the authority to discipline students for bullying and personal attacks.

“The court said students do not lose their constitutional rights when they enter school property. In 1969, however, the world was young and social media were nonexistent. Today, tens of millions of students are doing ‘remote learning,’ and off-campus social media speech saturates schools. B.L.’s school says she has scant First Amendment protections even away from school because social media guarantee[s] that what is said off-campus does not stay off campus.
But two libertarian institutions, the Pacific Legal Foundation and the Cato Institute, and libertarian satirist P.J. O’Rourke (who tells the court that he ‘has heard the exact rant at issue in this case at the family dinner table’), have submitted an amicus brief supporting B.L. They make four arguments:

Schools that erase the distinction between on- and off-campus behavior subject students to constant monitoring of their thoughts. Such ubiquitous monitoring derogates the constitutionally protected right of parents to supervise their children. Allowing schools to punish anytime-anywhere speech will encourage schools in their aggressive enforcement of political agendas, and will inevitably involve punishing speech because of reactions to it, thereby allowing a ‘heckler’s veto.’ (In 2014, the incorrigible U.S. Court of Appeals for the 9th Circuit upheld a school ban on wearing T-shirts emblazoned with the U.S. flag on Cinco de Mayo, lest some other students be offended.) All that in turn incentivizes ‘informant-style behavior’ and the snitch culture that fuels today’s vindictive Internet mobs that stifle ideas by punishing people for social media speech.

This brief urges the court to adopt ‘a rule that permits schools to regulate student speech only when the speech occurs in a place or during a time controlled and supervised by school staff, and only when necessary to address objective disruption of the learning environment.’ Another amicus brief on B.L.’s behalf is written by three constitutional scholars: Jane Bambauer of the University of Arizona, Ashutosh Bhagwat of the University of California at Davis and Eugene Volokh of UCLA.

They argue that while schools may control virtual as well as physical classrooms, it does not follow that they may control online or other speech outside the ‘school context.’ Because schoolchildren are indeed especially vulnerable to cruelty from their classmates, schools should be able to punish such online cruelties, though only when they are about ‘the characteristics of individual people, not about broader policy matters,’ the brief argues. ‘Threats’ are not accorded First Amendment protection, while speech that threatens only the serenity or the sense of ‘safety’ of the hypersensitive is protected.”

George F. Will, Washington Post ($)

“Speech on school grounds during school time is addressed entirely to a captive audience of listeners who are legally compelled to be there, so it makes sense that the school has more authority. But when a student uses an off-campus platform, no one is compelled to listen, and the “audience” is anyone with internet service. Therefore, it stands to reason that students must have greater First Amendment protection when they are speaking off campus on personal time. It is one thing to say that a school can dictate how students speak to one another in class, but quite another to say that it has equal authority to dictate how students speak to the entire world, and that all speech must always be suitable for the classroom…

… As alarming as it will be for high school students if Levy loses, the outcome will be more frightening still for college students. Every time the Supreme Court has decided a First Amendment case at the K–12 level, college lawyers have raced to court and convinced judges to afford them the same level of control…. Regardless of how the Supreme Court may hedge its opinion, the reality is that Levy’s case will set the standard for adult-age college students for decades. And while losing a year of extracurricular activities might be survivable for a 14-year-old, it could be devastating for a 19-year-old. Being kicked off a sports team can mean losing free college tuition, a place to live, a meal plan, and health coverage. That makes the Levy case a must-win for college athletes, who need a safe outlet to speak out about racism and sexual abuse in their athletic programs.”

Frank D. Lamonte, Slate

“Even leaving aside the question of whether Levy’s rant was “substantially disruptive” (as a student, I heard much worse on campus and during school hours without any accompanying “disruptions”), it’s important to draw a bright line here: She’s right, they’re wrong, and it isn’t a close call.

Most state laws mandate attendance at government-operated schools for most minors (with some exceptions for private or home schooling).

The government gets substantial control of our kids for several hours a day, five days a week, not counting homework and extracurricular activities.

That substantial control must end at the schoolhouse door and at the final bell.
Apart from true threats of violence, which are actionable whether the perpetrator is a student or not, what our kids say, how they say it, and who they say it to when they’re not at school is simply none of the school’s business.

In the age of social media, it’s more important than ever for the Supreme Court to protect students’ free speech rights off campus as well as on.”

Thomas Knapp, LA Daily News