Last summer, the U.S. Supreme Court ruled that public schools do not have the right to punish student speech posted on social media while off campus except in some limited circumstances. This decision establishes a new precedent in the area of student free speech regulation, which has been virtually untouched for the past 52 years. This new ruling represents how free speech regulation is evolving in the age of the internet, but the Court declined to adopt clear guidelines as to when and how schools can regulate off-campus speech, creating much debate among First Amendment experts and school administrators alike. So what does the new ruling mean for Latin and how Latin punishes off-campus, online speech?
The Supreme Court case, Mahanoy Area School District v. Brandi Levy, involved a high school student, Brandi Levy, who was angry that she did not make the varsity cheerleading squad, and, while off campus, posted on Snapchat, “Fuck school, fuck softball, fuck cheer, fuck everything.” As punishment, the school kicked her off the JV cheerleading squad for one year, and Levy sued the school district for infringing on her constitutional right of freedom of speech. (If you want to read more about the case, read this previously published Forum article.)
The Supreme Court ruled 8-1 in favor of Levy, holding that the school violated her First Amendment right to free speech. The Court’s ruling was narrow, however, finding that the facts of the case did not satisfy the “substantial disruption” standard previously set by the Court for allowing schools to punish on-campus speech. While the Court acknowledged that a school’s right to regulate student speech is “diminished” in the off-campus setting—noting that “schools are nurseries for democracy” that should generally protect freedom of expression—the Court refused to draw a hard line between on-campus and off-campus speech.
Justice Stephen Breyer wrote, “We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”
Breyer continued, “We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.”
The Court’s opinion provided a somewhat vague list of types of off-campus behavior that may call for punishment, including, “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”
The lack of specificity of the new ruling has drawn criticism from many First Amendment scholars as well as school administrators. Catharine J. Ross, a professor at George Washington University Law School who was the lead amicus in a brief filed on the behalf of Brandi Levy, wrote, “The Supreme Court’s failure to define off-campus speech and to provide guidance to school administrators and lower courts about whether, when, and on what grounds schools may regulate and punish students for what they say on their own time from their own equipment, is likely to lead to much additional litigation—and to even more incidents in which schools punish off-campus expression that never reach a court.”
The principal of Philadelphia’s Pottsgrove High School, Bill Zeigler, who was interviewed for a Wall Street Journal article, thinks the Supreme Court’s ruling limiting a school’s authority over off-campus speech has complicated the way school administrators will handle this issue, and said, “I think this [ruling] will change the lens in the way principals see the speech of students. I think it muddies the waters and leaves room for future cases to bring clarity.”
Justin Driver, a constitutional law professor at Yale University, agreed with Dr. Ziegler, saying, “School administrators have been awaiting a decision from the Supreme Court addressing off campus speech for many years now, and the decision … leaves many questions unanswered.” He continued, “I would encourage school administrators to avoid issuing harsh sanctions unless they feel they have no choice.”
Since Latin is a private school, students don’t enjoy the same First Amendment rights as their public school peers, and thus the Supreme Court’s ruling is not binding on Latin. Instead, private schools are generally free to establish their own rules and disciplinary procedures in their published handbooks and policies. In an article published by the law firm Schulte Roth and Zabel, attorneys Mark Brossman and Donna Lazarus wrote, “While private schools have broad authority to set rules and discipline their students, in light of the Mahanoy Area School District, private schools should review their social media and disciplinary policies and consider limiting discipline to conduct which has a significant impact on the school community and which the school has a significant interest in regulating.”
So where does Latin draw the line on when and how to punish off-campus online speech? Upperclassman Dean Joe Edwards said, “Our handbook states that any student behavior, on or off campus, which falls outside of the school’s guiding principles can result in disciplinary action. We take any report of troubling behaviors very seriously and evaluate the impact that a student or students’ words and actions (in-person or online) have had on individual students and/or the school community.” He continued, “Gathering all available information, considering that information against our school policies, weighing any previous behaviors committed by the student(s) in question, and figuring out what steps make sense to repair harm done in the community combine to determine appropriate outcomes.”
When asked whether Latin expects to revise its policies in light of the recent Supreme Court’s ruling, Mr. Edwards said, “My sense is that Latin’s policies already align with the Supreme Court’s ruling. That is, students have significant latitude in posting things that are critical of the school, and there exist many examples of those.” However, Mr. Edwards mentioned how free speech protections stop when either in-person or online speech includes harassment, bullying, cyberbulling, hate speech, sexual misconduct, sexual harassment, or a bias incident. He said, “Speech originating off-campus does not change the impact of or the seriousness with which we take those behaviors as significantly disruptive to the well-being of individuals and the community.”
While, as Mr. Edwards said, Latin has adopted policies allowing it to punish some off-campus actions and speech deemed significantly disruptive, the descriptions of the behavior subject to punishment in the Student/Family Handbook are somewhat vague. In a section about off-campus behavior, the Handbook states, “A student who engages in serious misconduct away from school—including but not limited to conduct that is illegal or would be illegal if committed by an adult; conduct that endangers the safety or well-being of the student, other persons or their property; or conduct which brings disgrace to the Latin community—has violated a major school rule and is subject to disciplinary action”.
The “Student Conduct” section of the Latin Handbook lists standards that the student body is expected to uphold, such as, “Students should treat others with dignity and respect,” “Students should act in a way that promotes good health and wellness,” and “Students should be open and forthcoming when asked about their conduct.” In the conclusion of that section, it states, “Any student behavior, on or off campus, which falls outside of these guiding principles or that violates school values in a way that reflects poorly on the Latin School community, can result in disciplinary action”.
In addition to these guiding principles, the Handbook sets forth the school’s definitions of harassment, bullying, cyberbullying, hate speech, sexual misconduct, and sexual harassment.
Junior Charlie Coleman, co-head of Latin’s Debate Club, which is centered around students expressing different opinions through speech, said, “Honestly, if the student body was surveyed, the majority of students have not read a page in the student handbook. If Latin wants its students to be aware of the repercussions for off-campus speech, they need to directly address it to the students.”
Junior Ainsley Heaton, another co-head of the Debate Club, agreed with Charlie, saying, “I think that Latin needs to make sure that their definition of ‘hate speech’ or simple non-acceptable speech is specific and clear.” Ainsley continued, “It is obvious that as a Latin student you carry the school’s name wherever you may go, whether it’s your class in your Instagram bio, your school’s name on various work, or simply just wearing a Latin sweatshirt in public. Latin deeply cares about its name and reputation, sometimes to a fault. That’s why it needs to be clear exactly what is punishable by the school.”
In addition to the issue of whether students are on notice or aware of what off-campus speech is subject to discipline, there is the question of whether the school applies the standards and administers punishment in a fair and consistent manner.
On that issue, Peter Bernhardt ‘21, offered criticism of Latin’s past practice of punishing students for what they have said online, and believes the school has not been consistent in the severity of punishment imposed over the years. He said, “I think that recently Latin has been handling social issues inappropriately. After seeing several students face expulsions, I couldn’t help but think that multiple students were used by the school to set a precedent, which wasn’t fair to these individuals.” Peter continued, “The school must have felt some sense of urgency to expel students after numerous complaint emails and a Demanding Accountability protest, while simultaneously showing the student body that the administration lacked any form of spine.”
Ainsley said, “I have seen instances where students are rightfully punished, and other times where instances have been swept under the rug. When a case comes up surrounding speech, it is important that it doesn’t become a ‘trial’ or debate.”
Peter also expressed his view on how Latin could handle future incidents involving student speech. He said, “I think that in the future Latin needs to prioritize teaching students right from wrong, rather than simply expelling them. After all, expelling a student doesn’t teach them anything other than hatred and spite. If students learn nothing from their mistakes, they will enter the world without knowing how to effectively confront the biases that Latin seeks to terminate.”
When it comes to teenage social media behavior in particular, having schools focus on educating the students as part of the disciplinary process, rather than expelling them, also appears to have some support in the scientific literature. In an article published by the School Superintendents Association, Frances Jensen, a leading neurologist and neuroscientist who studied children’s brain development at Harvard Medical School, advises educators that teenagers need a “frontal-lobe assist.” She said, “[T]he part of the brain that makes them pause and say to themselves, ‘Bad idea. Don’t post that on Facebook’ … isn’t mature.” She believes schools can be places where kids make mistakes and learn how to manage themselves in the online environment.
To this point, Latin’s Handbook states, “The primary purposes of Latin’s discipline process are to get the problem behaviors to stop and to educate the violating student on how to be a more thoughtful, responsible citizen of the school community.” But, at the same time, the Handbook states very broadly that, while specific rules and expectations are discussed in the Handbook, “The school reserves the right to dismiss any student, or to deny re-enrollment to any student, who, in the sole judgment of the school, has had unsatisfactory academic or social performance, has engaged in conduct which is detrimental to the school or whose parent(s) or guardian(s) have engaged in conduct which is detrimental to the school.” As the recent Supreme Court’s ruling and Latin’s own policies demonstrate, the regulation of students’ off-campus, online speech may not readily lend itself to hard-and-fast, clearly defined rules. But the timing of the Court’s decision, on the heels of some controversial disciplinary actions taken by the school, may prompt Latin students to be more thoughtful about what they post online and focus on what it means to be good, responsible digital citizens.