Off Campus Speech/Social Media UPDATE
Last year, the Supreme Court issued it’s ruling in Mahanoy Area School District v. B.L. , you can read Professor Hudson’s discussion of the case HERE.
Mahanoy Background
The Supreme Court in Mahanoy affirmed the Court of Appeals ruling that B.L.’s 1st Amendment rights were violated after the school punished her for an off campus social media post. The Court noted that with respect to off campus speech a school: (1) can “rarely stand in loco parentis”; (2) “will have a heavy burden to justify intervention” when political or religious speech is involved; and (3) must especially respect “an interest in protecting a student’s unpopular expression”.[1]
The Court did not completely restrict a school’s ability to punish students for off-campus social media post. The Court noted that speech (post), that constitute true threats, fighting words, or obscenity is not protected speech.[2] It is important to add that the Court was careful to add that such speech needs to be carefully evaluated as offensive and controversial speech can still be protected.[3]
As with most cases, questions of particularity are left for future courts to determine. Following Mahanoy, school officials are left to ponder if the definition of “true threat”, as dictated in Virginia v. Black is applicable, or should officials look to elsewhere when such a threat is made off campus. That is, is intent to commit an unlaw act against a group enough and if so, what factors is an administrator to use as a guidepost.
The 10th Circuit U.S. Court of Appeals recent decision in C1.G v. Cherry Creek School District, while not controlling for schools in TN, may provide educators some insight to those questions. At a minimum, it should provide school officials with more pause prior to administrating punishment to students for off-campus social media post.
THE CHERRY CREEK HISH CASE
C1.G and several friends were at a thrift store on Friday 13th, 2019. They placed wigs and hats on, one of which resembled a foreign WWII military hat. C.G. posted the picture to Snapchat stating “Me and the boy’s bout to exterminate the Jews”. While C.G. removed the post an hour later and posted an apology the next day, a parent had taken a screenshot and reported it to the school.
The school, claiming that they had received complaints suspended C.G. for 5 days until a hearing could be held. At the subsequent hearing, it was recommended that he be expelled at which time C.G. parents filed suit.
The school, argued that C.G. speech amounted to hate speech and the district court using Tinker, ruled in favor of the school stating it was “foreseeable that C.G.’s post could cause a substantial disruption and interfere with the rights of others.”
HERE COMES MAHANOY
On appeal, the C.G.’s attorney focused on the recent decision in Mahanoy. As in Mahanoy, C.G.’s speech was off campus, unrelated to a school activity and did not target nor was directed at the school or specific members of the school community.
The school argued C.G.’s post amounted to hate speech. They stated that they had received several emails from concerned parents, the post had been widely circulated in the Jewish community and the post scared, angered and saddened a family whom had a student who shared a class with C.G.[4] Attorneys for the school also noted that news outlets covered the incident, additional parents contacted the school and the school had to take school time away (an advisory period) to discuss harmful speech.
The 10th Circuit agreed with C.G. and reinforced the high standard of “substantial and material disruption” that we all recall from Tinker. Despite the evidence above, the court here noted that the “those facts do not support a reasonable forecast of substantial disruption.” The court stated that the school would need to show how “the learning environment had been impacted” and that “impact does not necessarily equal substantial disruption”.
The Court also noted that (1) the school had no documentation of facilitating similar action and (2) C.G. picture did not include weapons or specific threats. Readers who want an overview of judicial background of school suspension laws might be interested in the case as the 10th Circuit reviews a student’s due process rights according to Matthews v. Eldridge and Goss.
TAKE AWAY
C.G. v. Cherry Creek High School is the first time an appellate court has reviewed a student discipline issue resulting from an off-campus social media post, post Mahanoy. If other courts follow suit school officials should note that the standard to restrict such speech is high. By high we are talking Everest high.
Today school officials often feel they are left with no choice but take every threat of violence toward other students seriously, particularly those that are based on race, gender or nationality. Such an environment often creates a fear of a failure to act and promotes a tendency to over react to the somewhat immature acts of students.
So, what’s the answer? If anything, Cherry Creek tells school officials that if the speech is made of campus and you feel it represents a threat, they had better investigate it. However, if it was not directed at anyone in the school community nor did it not have a substantial impact on the school day, they had best forgo any official disposition.
Finally, the fact the court references the school’s lack of prior action may indicate that courts may look for proof of the consistent application of policy prior to supporting a student’s punishment resulting from speech when it occurs off campus via social media.
Substantial Disruption
One final point that is important for students, parents and school officials. The 10th Circuit provided a bit a clarity with respect to what constitutes a disruption. Despite the action requiring the school to make a public information release, alter the schedule such that students could be talked to about the post and documented evidence from upset members of the community, the court noted the school still lacked evidence that learning was impacted.
I have often been asked, “so what is a substantial disruption?”. After C.G., administrators, parents and students need to ask what impact did the action in question have on the learning environment because “an impact alone does not equal a substantial disruption.”