Legal Forum (Continued)
The legal question presented by the school to the Supreme Court is, Whether Tinker v. Des Moines, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus. The competing legal question presented by B.L. to the Supreme Court is, Whether the court of appeal correctly held that a public high school violated the First Amendment when it punished a student for her colorful expression of frustration, made in an ephemeral Snapchat on her personal social media, on a weekend, off campus, containing no threat or harassment or mention of her school, and that did not cause or threaten any disruption of her school. Obviously, there is a competitive advantage to the litigants in which way the Court addresses the legal question. The broader question posed by the school, if answered “yes,” gives the school much more latitude in controlling student speech away from the school setting. The more narrow question posed by the student, if answered “yes,” adds contingencies that give a student more opportunities to challenge a school’s punishment for speech outside the school. Beyond that, there have been three different ways the district courts and the circuit courts of appeal have applied Tinker to student speech and the use of social media. One interpretation is that Tinker, if used, requires a showing of foreseeability—that it is reasonably foreseeable that the speech will reach the school. The second interpretation focuses on a nexus, a showing of a connection between the student’s speech on social media and an injury to the school’s pedagogical interests. The third interpretation spends most of its concern on the severity of the impact of the student’s speech on what happens in the school.
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How the Court looks at these questions and the facts they use to arrive at its decision really matter. We have been going through a time over the last twenty years where more student expression increasingly occurs online. Indeed, during the pandemic year(s) even more of school has occurred online rather than in school. School administrators can fairly anticipate more and more novel questions related to online activity and school authority over students (witness the recent news item about a school punishing a student for allowing a pellet gun to be seen leaning in the corner of his bedroom by a teacher during instruction on Zoom.) As stated, the Court will likely not issue its opinion until June of 2021. If the Court categorically agrees with the Third Circuit Court of Appeal, that Tinker simply does not apply in any way to social media speech originating outside the school, then it will be necessary to analyze and take stock of best practices for school administrators in that eventuality. Likewise, if the Court adopts a fifth rule for student speech starting on social media, then analysis for best practices will have to be fashioned. In the meantime, until the Court shows us the way, best practice for school administrators in dealing with student expression that originates on social media away from the school probably requires that school administrators incorporate all three different interpretations of Tinker, applied by the lower courts as described above. In that vein, best practices for school administrators in dealing with situations that arise from student speech on social media would include, as follows: 1. Discover and document fully the path of how the student’s speech started on social media and made its way into the school. 2. Discover and document fully the connection of the student’s speech to the pedagogical interests the school has in good instruction. 3. Discover and document fully the severity of the impact of the student’s speech on the pedagogical interests of the school.
CLAS School Leader
