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Addressing Off-Campus Harassment in the K-12 World

By: Saundra K. Schuster, J.D. and Brett A. Sokolow, J.D. Partners, TNG Consulting

Increasing Pressure on Schools to Address Off-Campus Conduct

K-12 administrators seek our counsel frequently on the issues of off-campus jurisdiction over student misconduct. Conversations about addressing out-of-school sexual assault and sexual harassment have been especially pressing because of the significant changes that have happened with Title IX over the last twelve months. District and school practices and policies are all over the map. In some states, K-12 schools would never extend the reach of their codes of conduct off-campus. In other locations, it seems to vary district-by-district. We’ve even noted that sometimes it varies within districts, where administrators may be loath to address off-campus sexual assaults between students (or any behaviors that are crimes) but are willing to address out-of-school harassing speech that occurs on social media.

Both off-campus assaults and harassing behaviors can also have effects in the school program, which can tie the conduct to Title IX, even if the behavior itself is outside the reach of school discipline. With respect to student speech on social media, judges grapple with the intersection of free speech and off-campus jurisdiction frequently now and can be vexed by a school’s refusal to address criminal off-campus misconduct between students when contrasted with a willingness to address social-media-based harassment. Another layer of complexity is that many states have now criminalized revenge porn, sexting, and transmission of nude images of minors, making distinctions between criminal acts and harassment less salient. So, where does that leave K12 schools with respect to legality, boundaries, and defensible policies? Let’s explore…

The Tinker Disruption Test Is Still the Primary Evaluative Standard

The U.S. Supreme Court ruled in the Tinker case[1] in 1969 that schools could only impose discipline on a student for the expression of views in the school setting if that expression materially disrupted classwork or involved substantial disorder or invasion of the rights of others. The court stated the now-famous line, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] This set a standard for the last fifty years related to in-school expression that departed from previously held views that school administrators had broad latitude to discipline students for both conduct and speech while in school.

The Third Circuit Sharply Limits School Authority to Address Off-Campus Speech

The issues of student expression became more complex with the advent of social media as a popular vehicle for expression. In 2010, the 3rd Circuit Court of Appeals ruled en banc[3] on two similar cases involving off-campus social media postings by students.[4]  In the Layshock case, the school suspended a student who used his grandmother’s computer to create a fake online profile for his principal. This profile portrayed the principal as a drug user who also shoplifted.

In the Blue Mountain School District case, a student used a computer off-campus to create a fake profile of her principal, featuring references to the principal’s past behavior, including sexually explicit language. The school disciplined the student and she sued. After rehearing, the Third Circuit ruled in favor of the students and held that, consistent with Tinker, students have a right to speak freely as long as that expression is not one of the exceptions to the First Amendment or creates a substantial disruption to the school. But, other Courts of Appeal have gone in the opposite direction, giving schools outside the Third Circuit broader latitude to discipline off-campus student speech.

Other Circuit Courts Have Given Schools Greater Latitude to Impose Discipline

At Lewis S. Mills High School in Connecticut, the principal barred a student from holding her elected student government office after she posted that the superintendent and other school officials were “douchebags” and encouraged other students to call the administrator to “piss her off more”.  The student sued, arguing that this off-campus blog post was protected speech. The U.S. Court of Appeals for the Second Circuit upheld the school’s actions.[5]  Similarly, the Sixth Circuit Court of Appeals upheld the Jefferson County Board of Education in a legal action that ensued when they removed several high school football players from the team after they posted a petition to have their coach removed.[6]  In these cases, the courts agreed that schools should be entitled to regulate student speech involving extracurricular activities that are antithetical to the value espoused by the team or organization.

Will the Supreme Court Now Step In to Decide on Off-Campus Jurisdiction?

Now, the Supreme Court may be poised to resolve these competing Circuit rulings. The Mahanoy[7] case involves a high school student who was rejected as a varsity cheerleader. In response to this rejection, she posted profane statements accompanied by visual expressions on Snapchat. While the opportunity to view Snapchat messages is short, she snapped over 250 individuals. Several of them complained about the comment, captured the snap, and reported the message to the coach. The school determined that the student violated team and school rules and the student was removed from her opportunity to participate as a JV cheerleader for a year. 

The school defended its position by stating it was intended to avoid chaos at the school and maintain a team-like environment. The student contested the school’s action, arguing a violation of her First Amendment rights. The district court upheld her lawsuit, stating that by agreeing to team rules the student did not waive her right to free expression and because the snap was sent off-campus it was not subject to regulation.

The district court held that under the Bethel[8] standard the court not only applied the Tinker disruption analysis, but also balanced that with the freedom of a student’s speech rights against the school’s interest in teaching students the boundaries of socially appropriate behavior. The court determined that the student’s snap did not cause actual or foreseeable substantial disruption.

Upon appeal, the Third Circuit Court of Appeals further analyzed whether the student’s speech was afforded protection because it occurred off-campus and determined that since it was off-campus the only applicable standard was whether the student’s speech met the Tinker standard of being “materially disruptive to the educational environment”.  The Court stated that a school may not “reach into a child’s home and control his/her actions to the same extent it can control that same child when he/she participated in school-sponsored activities.”[9]

A student’s online speech does not render it “on campus” simply because it referenced the school, referenced school employees, or was shared with students from the school. The court found that Bethel’s balancing test would not apply because it was applicable only to on-campus speech. 

The School District argued that the student did not have the same level of constitutional protections of expression because her actions and subsequent punishment involved an extracurricular activity, not the fundamental property right of her actual education. The Court was not persuaded, stating that the student should not have to demonstrate that her interests in expression should have to outweigh the school’s interests in suppressing her speech.

The School District has now petitioned the U.S. Supreme Court to rule on this case, arguing that allowing off-campus speech to go unpunished will lead to further in-school disruption, harm to those students already disenfranchised, and leave the school administration void of the ability to appropriately address increasing social media vitriol that impacts individuals and the educational system. We’ll keep you informed as the Mahanoy case progresses.

Key Practical Takeaways Until We Have Definitive Answers From the Courts

  • The authority of schools to discipline off-campus speech – including on social media – is not a given. It varies widely by jurisdiction and is an unsettled area of law that is evolving rapidly as social media cases test school boundaries. Make sure you have insight into the most recent rulings applicable to schools in your jurisdiction.
  • Administrators will want to consult knowledgeable legal counsel before imposing discipline on off-campus speech.
  • Many K12 school associations are supporting the Mahanoy appeal, advocating to give school districts the power to widely police off-campus student speech. That desire has its merits, but in the vein of “be careful what you wish for,” courts that grant school districts a wider berth to address off-campus speech may also expect them to address other forms of out-of-school misconduct, such as sexual assault.
  • Widespread sexting within the Nashville public schools led to a Title IX ruling[10] that imposed a duty under Title IX on those schools to proactively act to prevent such misconduct. The conduct at issue in the case blurred the boundaries between on-campus and often and was often a hybrid of both. This case suggests that the more broadly schools extend their jurisdiction, the broader the scope of student misconduct schools may have a duty to prevent, and face liability if they fail to do so.
  • Be prepared to articulate clearly how off-campus speech impacts and disrupts the educational program or mission. If you can’t, you may find the courts do not uphold the discipline imposed.

[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

[2] Id. at 506

[3] En banc is a ruling by the entire court, not a three-judge panel

[4] Layshock ex rel. Layshock v. Hermitage School District, 593 F.3d 249 (3rd Cir., 2010), and J.S. ex. rel. Snyder v. Blue Mountain School District, 593 F.3d, 308 (3rd Cr. 2010)

[5] Doninger v Niehoff, 527 F 3d 41, 46, 53 (2nd Cir 2008)

[6] Lowery v. Euverard, 497 F 3d 584, 597 (6th Cir. 2007)

[7] B.L. v. Mahanoy Area School District, 376 F. Supp 3d. 429 (3rd. Cir. 2020)

[8] Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

[9] Mahanoy, 650 F 3d at 216.

[10] T. C. ex rel. S.C. v. Metro. Gov’t of Nashville and Davidson County, (U.S. Dist. Ct., M.D. Tenn., Nashville Div 2019).

For further reading about Title IX Investigations involving online data collection, check out our previous post. Additionally, you may be interested in attending our K-12 Training Series taking place this August.