This piece won the 2022 Wegener Prize.
Introduction
What First Amendment rights do students have to off-campus speech? How and when ought schools regulate such speech? What legal standards should courts apply when off-campus speech occurs on the geographically borderless, increasingly ubiquitous medium of the internet? In Mahanoy Area High School v. B.L., argued and decided in 2021, the Supreme Court grappled with these questions. The court’s opinion in Mahanoy reveals not only the complexity of these questions, but also the increasing inadequacy of existing legal standards for considering schools’ interests in regulation and students’ rights to free speech. In this essay, I will argue for a new legal standard that considers the interest of schools and rights of students, and which robustly protects student speech off-campus and online while accounting for the vital interest of schools to regulate truly harmful online speech.
First, I will examine the court’s reasoning in Mahanoy and why the court’s current standard insufficiently protects students’ rights to off-campus speech. I look at the general balancing test applied in Mahanoy derived from the case Tinker v. Des Moines Independent Community School Dist., which considers “disruption” as the key justification for regulating speech. I then look more closely at a central component of the court’s reasoning: the concept that schools stand in loco parentis, or in the place of the parent. The concept of in loco parentis (ILP) has been used by courts to answer several previous questions of how to balance students’ individual rights with schools’ interests, particularly the school’s ability to discipline. I follow the argument of Susan Stuart in identifying a key flaw in ILP’s implementation: courts have used it to allow schools broad prerogatives to discipline students, but failed to apply the concomitant responsibility of schools to protect.
Next, I will turn to the specific issue of online speech, and its unique challenges. These challenges include the question of how to apply ILP to off-campus speech, the problem of online speech that goes beyond mere disruption and constitutes targeted harm to other students, and how to approach online speech when the origin and reception of such speech is geographically ambiguous. I consider three potential approaches to adjudicating online student speech: one that would determine the degree of Tinker’s applicability to off-campus speech on a case-by-case basis (as the court did in Mahanoy), one which would subject all online and off-campus speech to potential school regulation through Tinker, and one which calls for a “bright line” between on and off-campus speech that would prevent school regulation of all off-campus speech, regardless of disruption.
Finally, I argue for a fourth approach, an original standard under which courts would ask first whether student speech created not merely disruption, but actual harm to another student. If such speech merely created disruption, the court should apply an unambiguous bright line for on versus off-campus speech, under which off-campus expression would be protected from school regulation even if causing disruption. However, if harm is demonstrated, the courts should allow and even require schools to regulate off-campus speech. By creating a clear distinction between the vague concept of “disruption” with the more serious “harm,” courts can protect student speech from indiscriminate school regulation and provide active remedy for serious issues of cyberbullying through an overdue application of the protective side of ILP.
Mahanoy and the Tinker standard
B.L., the respondent in Mahanoy, is a public high school student, who upon failing to make the varsity cheerleading team and to get her preferred softball position, “used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team,” including an image of her and a friend with raised middle fingers and the caption “Fuck school fuck softball fuck cheer fuck everything.”1 While the posts were taken and sent off-campus at a local convenience store, B.L.’s coaches suspended her from the J.V. team after hearing of the posts and determining “that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.” 2
The district court found in B.L.’s favor, applying the test outlined in Tinker v Des Moines under which otherwise protected student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”3 The Third Circuit also found in B.L.’s favor, but held that the school’s freedom “to discipline students for conduct that the First Amendment might otherwise protect” did not apply to off-campus speech in any capacity, and therefore the Tinker disruption standard did not apply. Thus, the Supreme Court was tasked not only with determining whether B.L.’s actions constituted a disruption under Tinker, but whether Tinker applied to off-campus speech.
The Supreme Court was clear in addressing the first question; they too found in B.L.’s favor. The court expressed some disagreement with the Third Circuit on the second question, but explicitly declined to offer a new standard for off-campus speech, specifying, “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.”4 The court instead contained itself to determining that the “special characteristics” that allow schools to regulate speech do not always disappear when such speech is off-campus, but that balanced against these characteristics were particular features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.”5
In his argument for a bright line between on and off-campus speech, put forth prior to Mahanoy, Alexander Tuneski articulated the pitfalls of the Tinker standard and challenged its potential application to off-campus speech. While the court in Mahanoy grappled with how to apply Tinker to off-campus speech, Tuneski argued that Tinker suggests its own limitation to on-campus speech, and that “the fact that the Tinker Court refrained from explicitly allowing school officials to regulate off-campus speech and the overall pro-students' rights tone of the decision would seem to suggest that the Tinker Court would have abhorred a school's attempt to infringe student expression outside of the schoolhouse gates.”6 Even when applied to on-campus speech, however, Tinker’s test is so broad as to make it significantly less useful. Tuneski writes, “the Tinker substantial disruption test provides little guidance to school officials as to what constitutes a sufficient disruption to warrant school punishment. Accordingly, the test does not significantly limit the ability of overly zealous school officials to justify punishing student expression. Furthermore, the test provides courts with wide discretion in which courts can manipulate the test c to reach a desired conclusion.”7 His accusation not only highlights flaws in the Tinker standard itself, but also the culpability of the court in applying Tinker. In this, Tuneski demonstrates the two-fold need for a clearer standard of student free speech.
In Loco Parentis
While the majority in Mahanoy did not question the overall validity of Tinker’s standard, they did articulate limitations particular to off-campus speech that would restrict the school’s ability to regulate speech, including potential regulation through Tinker. The first of these features is that “a school, in relation to off-campus speech, will rarely stand in loco parentis.”8 As school administrators stand in for parents in “circumstances where the children’s actual parents cannot protect, guide, and discipline them,” when parents can protect, guide, and discipline children, the school’s responsibilities and regulatory powers under ILP are more limited. Geographically speaking, the court said, off-campus speech “will normally fall within the zone of parental, rather than school-related, responsibility.”9
While the problem of regulating off-campus speech is one of growing salience considering the increasing ubiquity of online speech, the negotiation of ILP in schools is an old problem. For Justice Alito in his concurrence, ILP is key to answering not just how to regulate off-campus speech, but the older, more fundamental question of, “why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school?”10 He wrote that the courts have largely focused on the idea of implied or explicit consent from parents to some relinquishment of their child’s rights, which in turn the courts have addressed “by adapting the common-law doctrine of in loco parentis.”11
The very fact that ILP originates in English common-law, “imported” from William Blackstone’s 18th century definition of the doctrine, illustrates a first potential limitation in its application in today’s schools and for today’s legal issues—in its original context, it did not apply to schools at all but to the master/apprentice relationship.12 Created in the context of voluntary apprenticeships and privately contracted relationships, some then contend that “in loco parentis is not the appropriate standard to use in a state-run public institution governed by compulsory education laws”13 Further issues with the doctrine arise in even its more modern application. While Mahanoy and the discussion here deals with primary and secondary schools and students, ILP has also been applied in higher education, most recently through the increasing protections expected from schools, beginning in the 1980s. These new expectations, as scholars like Szabelwicz argue, go “beyond traditional notions of liability imposed under all these theories as they are commonly known. Rather, it seems that a new in loco parentis relationship is developing. Students are demanding it. College administrations are greatly concerned by it. And courts are enforcing it.”14 Yet while colleges faced increasing liability under the protective responsibilities of ILP, a different pattern has played out in primary and secondary schools. Where one might except higher protective responsibilities for younger children, ILP has been used for essentially the opposite purpose in those contexts. Instead, “as the application [of ILP] moved from the college level to the public school, it has been widely used as a legal defense against charges of liability by educators, and as a justification for corporal punishment in the schools.”15
Susan Stuart argues that the use of ILP to justify discipline, and “predominately as a rationale for relaxing the Fourth Amendment protections for student searches and for stifling First Amendment freedom of student speech,” misrepresents both the original meaning and text of the doctrine and implicates the court in this willful misinterpretation. “16 A close and literal reading of Blackstone,” Stuart argues, “should highlight that he joined in loco parentis with discipline; he did not extract discipline as the only portion of in loco parentis that applied to the teacher nor did he divest teachers of their overarching guardianship responsibilities, especially given the historical context.”17 Instead of reading the whole of Blackstone’s ILP, “the Court's authoritarian tendencies remain focused on the school districts' right to discipline and not on the concomitant duty to protect, except in rationalizing the expansion of school district discretion to control and discipline.”18
Justice Thomas’s dissent in Mahanoy, in which he re-asserted that the First Amendment does not apply to students in schools and that Tinker itself is unconstitutional, arguably illustrates just this exclusively disciplinary ILP. He argued that historically, “the doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way.”19 Against this view, Stuart offers potential remedies for the misapplication of ILP, including the charge that a school create an environment “that reflects and enforces the basic welfare of their students.”20 In particular, it is from this obligation to protect basic welfare that I derive the need for schools to involve themselves in preventing harm to students from cyberbullying, and the need for courts to distinguish such harm prevention from the other regulation of online speech. Stuart adds that Tinker can also be a remedy, when used as a normative rule to protect constitutional rights generally, but notes:
The irony is that the Court is trying to move away from the Tinker rule for reasons that are not entirely clear but seem designed to give more flexibility for schools to do strange things in which the Court chooses not to interfere. The irony is that school districts are finding themselves having to go back to the Tinker model to deal with off-campus, online speech that does not otherwise come within the "special characteristics" of the institution nor otherwise have an immediate effect on the educational mission of the school but that does have a disruptive impact on the school environment. The Bethel Court's in loco parentis/"basic educational mission" model is entirely unworkable in these circumstances, being descriptive rather than normative.21
Stuart levies a pointed charge against the court, and one that echoes Tuneski’s criticisms of the court’s use of Tinker: that Tinker is applied not in uniform and just ways, but specifically to offer undue deference to the disciplinary and regulatory powers of schools, at the expense of student rights of free speech. This re-assertion of Tinker’s inadequacy, specifically for off-campus and online speech, again informs the need for a bright line between on and off-campus speech, where off-campus speech (having first passed the court’s scrutiny for ‘harm’ over mere ‘disruption’) is protected.
The Challenges of Online Speech
While the majority contained itself to the distinction between on and off-campus speech, the broader debate around Mahanoy raises the unique challenges of online speech. Perhaps it is understandable that the court in Mahanoy, already grappling with layers of contested precedent, would decline to complicate their task further. The court raised the issue of overlapping parental and school authority with off-campus speech—the ubiquity of technology in schools, including the case of fully online or ‘remote’ school, where such competing authorities might overlap completely, raises further concerns. The anonymity of the internet and the potential for wide dissemination of speech can create the context for not merely disruption of the general school environment, but targeted and serious harm to individual students, in many ways raising the stakes for the regulation of online speech.22 And as a borderless medium, the internet defies clear geographic distinctions, and courts and schools alike struggle to define what exactly—the speech’s creation, distribution, or access—makes online speech on or off-campus.23
Three Approaches
In trying to balance schools’ interests, students’ rights, and answer all the above questions, three general approaches the court could take emerge, through the opinion in Mahanoy itself, and as articulated by legal scholars. All three of these approaches are, I argue, inadequate to the issue of online off-campus student speech.
- The Mahanoy “Standard”
One approach the court could take is simply to continue as they did in Mahanoy and decline to offer a clear constitutional rule for how schools should regulate off-campus speech, making the lack of standard,in the legal sense, the standard. This approach involves weighing the applicability of Tinker given the facts of the case and considering exceptions to Tinker protections accrued over the years.24
There is value in retaining flexibility in the court, particularly for issues closely related to changing uses and forms of technology. However, as Tuneski and Stuart would suggest, the lack of absolute clarity over what test to apply to off-campus speech can, and will, lead to undue deference to schools and murky applications of Tinker, and does little to remedy the incomplete and punitive application of in loco parentis. Even presuming the Supreme Court can apply its flexible and loose balancing tests consistently, the fact that it has not given a clear standard for online speech contributes to a lack of uniformity in lower court decisions, with harmful ramifications for student speech.25
- All Tinker, All the Time
The second approach accounts for the Internet’s lack of geographical boundary, and schools’ interest in stopping the extreme but pervasive forms of online speech that constitute cyberbullying and harassment. Renee Servance argues that “courts need to allow schools to address the stigmatizing and publicly humiliating problem of Internet harassment, which may originate outside of school per se but carry its sting into the classroom.”26 Any form of bright-line rule that would remove “all school authority over speech merely because of its off-campus status” would ignore “the relationship between the speaker and the target of the speech,” and therefore inadequately protect students from online personal attacks.27 Servance’s approach would apply the Tinker standard to all off-campus speech. Upon demonstrating that speech caused disruption, schools would be able to regulate the speech and discipline the speaker. If the court applied this standard in Mahanoy, their ultimate holding would remain the same, as they determined that the “alleged disturbance [did] not meet Tinker’s demanding standard.”28
While this approach would offer more uniformity and clarity for lower courts, it would replicate the problem of overly deferential applications of Tinker, through which “courts threaten to chill student speech by not adequately assuring that off-campus speech will be protected.”29 This approach, in always granting Tinker’s application, would allow the court’s “authoritarian tendencies” to infringe on student speech even more than it currently does.30
- Tuneski’s Bright Line
Tuneski argues that instead of Tinker applied to all off-campus speech, Tinker should not apply to any off-campus speech. Instead, “courts should employ a bright-line rule clearly distinguishing between on- and off-campus speech” and that “off-campus expression would be immune from school sanctions.”31 Again, Tuneski asserts that this is what the Tinker Court itself would have wanted, and that it is “inappropriate to subject off-campus internet speech to the easily manipulable, vague standards of the substantial disruption test.”32 The distinction he draws between origination, dissemination, and reception aims to prevent schools from defining on-campus speech based on where speech is received, which he argues “essentially eliminates the utility of the on-campus/off-campus distinction.”33 He stipulates that if the speaker takes “additional, purposeful steps to ensure that the expression [is] disseminated at school,” or for the students causing disruption itself on campus, the school would still be able to discipline under Tinker.34
Schools also can and should “rely more heavily on parents taking actions to punish their children and restrict the ability of their children” for potentially disruptive online speech, and for the more egregious cases of student speech, “can rely on the civil and criminal justice system to serve as adequate deterrents.”35 Yet this approach as a whole would leave schools potentially unable to regulate cyberbullying, as Servance fears, and still leave open questions and the unjust standards of purely disciplinary ILP.
Tinker Tailored
The standard I put forth attempts to respond to the strengths of the three approaches outlined and to their specific inadequacies. This standard would involve asking two questions. In establishing a two-part test, the intent is to create a standard that is more flexible than a universal bright line between on and off-campus speech for all cases, which does not allow for any regulating of off-campus speech whatsoever, and more flexible than the total inclusion of off-campus speech under a school’s regulatory Tinker powers.
The court would ask first whether the speech in question constituted harm or disruption. The intent here is to modify (to tailor, if you will) the Tinker standard, adding a category besides disruption, one of “harm.” “Harm” would encompass the more targeted, severe, personal, repeated, or detrimental student speech and conduct—what Servance counts as “cyberbullying” in her approach. “Harm” also differs from “disruption” not merely in the magnitude of the speech’s effect, but in that it negatively impacts individual students, as opposed to broadly affecting institutional activities such as the general focus or topic of conversation of students in a classroom.
If the school can demonstrate that the speech in question did cause harm, over and above mere disruption, the school’s regulation of speech would be allowed, regardless of whether such speech originated off-campus or online. Importantly, while a school may seek to demonstrate harm to justify regulation of the harmful speech, students may also use this standard to argue that a school failed to meet its protective duties. This would allow for some reintroduction of the “concomitant duty to protect” found in ILP that has been overlooked by the courts, and would also bring primary and secondary schools more appropriately in line with the existing application of ILP and the related liability found in higher education.36
If the school cannot prove that the speech constituted harm, it would not be able to regulate off-campus speech, even if that speech created disruption. The same caveats that Tuneski articulates for off-campus speech would apply, namely that schools could regulate constitutionally-unprotected speech or rely on parental discipline, and the Tinker disruption standard would apply for all on-campus speech. But by protecting most non-harmful online off-campus speech from the manipulatable Tinker standard, students’ First Amendment rights to free speech would be better protected, as they ought to be.
Conclusion
Though the court avoids asserting a new standard for off-campus student speech in Mahanoy, both the lack of clear standard and the tests it does apply are inadequate to the larger challenges and questions raised in the case and by scholars. The Tinker disruption test does not offer enough protection for student off-campus free speech, the court continues to misapply in loco parentis, and both these shortcomings are exacerbated by the unique problems of online speech. A two-pronged test that looks first for harm and then draws a bright line between on and off-campus speech is best able to balance student rights and school interest considering these challenges, and the court ought to apply such a standard in future cases of student off-campus speech.