In 2017, a high school cheerleader learned she had not made the varsity team and turned to Snapchat. She posted a picture of herself and a friend, middle fingers up, with the text “f— school f— softball f— cheer f— everything.” She was subsequently suspended from the Junior Varsity cheer team. Little did she know that her frustrated message would lead to the first U.S. Supreme Court case to address the limits of school discipline for student off-campus, online speech.
Yet, last Friday, the Supreme Court decided to hear the student’s challenge to the school’s discipline for her Snapchat post. I have been writing about the scope of K-12 schools’ authority to discipline students for off-campus, online misconduct for a long time. The Supreme Court has long refused to take on similar cases, despite pleas from administrators for better guidance on their rights. The result is that courts have reached different decisions in different parts of the country, making it even more challenging for schools to apply the standards correctly.
It is exciting to think that the Supreme Court may finally give direction to educators on this issue. Hopefully, they will answer important questions like whether the Tinker standard for substantial disruption applies to off-campus online misconduct and what, if any, nexus is required to impose discipline.
What should school leaders do about this issue now? School leaders in most jurisdictions should wait on the Court’s decision before making any changes to policies and procedures. Those of us who advise K-12 schools know how important the authority to discipline for off-campus, online speech can be to maintaining order in a school building and hope that the Supreme Court will agree. Until then, it is more important than ever to reach out to legal counsel for assistance in understanding what, if any, discipline can be imposed for off-campus, online incidents, including those involving Title IX. Keep reading this post for more insight and analysis of this important decision.
The Supreme Court will review a June 30, 2020 decision by the Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania and a number of other Eastern states. In that decision, the Third Circuit held that the seminal school First Amendment case, Tinker v. Des Moines Independent Community School District, did not apply to off-campus speech. This was a significant break from prior decisions that have held that schools should use the Tinker standard for off-campus, online misconduct. The Tinker standard allows discipline of student speech if it causes or can reasonably be foreseen to cause a substantial disruption to the school environment or invade the rights of others. Tinker addressed on-campus speech (students wearing black armbands to protest the Vietnam War) but has been applied by many courts, including those in the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois and other Midwestern states.
Schools and districts outside of the Third Circuit are not bound by the Third Circuit’s decision and should continue to assess disruptive, off-campus speech under current standards in their jurisdictions. The Supreme Court’s review will provide clarification and unity on this topic, once it is issued. This case makes clear, however, how important it is to reach out to obtain legal support when addressing these questions. The standards are ever-changing and nuances can be easy to miss.
What does any of this have to do with Title IX? If you receive a report of off-campus, online, sex-based misconduct, you must consider whether the conduct is “in a program or activity” of the school, in light of recent amendments to the Title IX regulations. This means the educational institution must have substantial control over both the alleged harasser and the context of the harassment. But, even if that standard is met, you must also consider the First Amendment before imposing certain consequences under Title IX. Even if conduct is arguably “in a program or activity,” the First Amendment could limit the right to impose certain types of consequences.
For those jurisdictions in which Tinker is still the law of the land, such as here in Illinois, respondents can only be disciplined or receive other consequences if there is an adequate showing of a material and substantial disruption and nexus to the school. In the Third Circuit, discipline may not be imposed at all. Other jurisdictions use different standards. Remember that whether you can impose discipline or not is irrelevant to whether you must implement other measures to address sexual harassment that is found in your community. Contact us for more assistance in understanding what options are available and advisable when discipline cannot be imposed.