Here, There, and Everywhere: Defining the Boundaries of the "Schoolhouse Gate" in the Era of Virtual Learning.

• Author: Briendel, Robin

TABLE OF CONTENTS I. INTRODUCTION 127 II. BACKGROUND 130 A. The First Amendment and the Right to Free Speech 130 B. Tracing the Extension of Constitutional Rights to Children and Students 131 C. The Internet and Contemporary Forms of Student Speech 134 1. The Emergence of the Internet and Social Media 134 2. Student Social Media Use Today 135 D. Student Speech in the Internet World: Approaches to Regulating Off-Campus Speech 137 1. Pre-Mahanoy Circuit Court Approaches 137 2. Mahanoy Area School District v. B.L. 139 3. Confusion in the Lower Courts Post-Mahanoy 140 III. ANALYSIS 142 A. The Modified Test: A Systematic Inquiry Assessing the Scope of Schools' Authority to Regulate Student Speech 142 1. Step 1: Did the Speech Have a "Sufficient Nexus" to the School? 143 2. Step 2: Did the Speech Implicate a Matter of Public Concern? 144 3. Step 3: Did the Speech Overlap with the Categories of Speech the Court has Already Addressed Concerning the Scope of the School's Regulatory Authority? 145 4. Step 4: Did the Speech Pose a "Reasonably Foreseeable" Risk of, or has it Already Produced, a Substantial Disruption to the Pedagogical Interests of the School? 146 B. Getting Rid of Unnecessary Red Tape: Eliminating the Consideration of the Geographic Origin of Student Speech 146 C. Applying the Proposed Test 148 1. Step 1: Did the Speech Have a "Sufficient Nexus" to the School? 148 2. Step 2: Did the Speech Implicate a Matter of Public Concern? 149 3. Step 3: Did the Speech Overlap with the Categories of Speech the Court has Already Addressed Concerning the Scope of the School's Regulatory Authority? 149 4. Step 4: Did the Speech Pose a "Reasonably Foreseeable" Risk of, or has it Already Produced, a Substantial Disruption to the Pedagogical Interests of the School?" 150 D. Justifying the Proposed Test 151 IV. CONCLUSION 152 V. APPENDIX 153 A. Table A: Recognized Categories of Unprotected Speech 153 B. Table B: Types of Speech Recognized by the Supreme Court as Within the Scope of Schools' Disciplinary Authority 157 C. Table C: Types of Speech Suggested by the Supreme Court as Within the Scope of Schools' Disciplinary Authority 158 I. INTRODUCTION

It's 3:00 PM on a Thursday. The last school bell of the day rings at XYZ High School, signaling the end of the school day. A group of friends leave their algebra class and walk to Starbucks. On their walk, the friends discussa classmate of theirs whom they dislike, another ninth grader--Student A. During the conversation, the girls refer to Student A as "fat," "ugly," and "stupid." One of the students in the group, Student B, creates a meme in which she superimposes Student A's Facebook profile picture on an image of Fiona, the ogre from the movie Shrek, with the caption "Weird Fat Fugly Ogre." Student B posts the meme on Twitter and shares it with her friends. Her friends retweet the meme and send it to additional students who are still at school waiting for soccer practice to begin. In only a few hours, the meme is circulated to much of the student body of XYZ High School. By midnight, it has been retweeted 350 times, has 1,500 likes, and has 200 comments.

Too afraid to face her peers, Student A refuses to go to school the following day. Enraged, her mother drives to the school with printed copies of the offending tweet and demands a meeting with the principal. Following the meeting, the principal identifies Student B as the meme's creator. He calls Student B to his office and suspends her from school for ten days for bullying Student A.

Weeks go by, and Student A remains distraught. Recognizing signs that her daughter, Student A, has started excessively exercising and restricting her calorie intake, Student A's mother enrolls her in an eating disorder program for teenagers affiliated with a local hospital. Around the same time, Student B, who realizes that her suspension will reflect poorly upon her as she applies to college, sues the school district and the principal, arguing that her suspension was an unconstitutional infringement of her First Amendment right to free speech.

While this might seem farfetched to some, this anecdote is based upon an amalgamation of lower court cases, (1) court documents, (2) and recent news stories. (3) Since the first social media website was introduced to the public in 1997, (4) at least fifty federal court cases have been brought by students challenging the constitutionality of disciplinary measures taken against them by their schools for their off-campus speech. (5) Between the continued prominence of computer-based learning in many schools due to COVID-19 (6) and the ever-increasing amount of time students spend on the Internet and social media, (7) the line of what constitutes activities within the spatial-temporal confines of school is blurry at best. This lack of clarity has created confusion among school officials concerning their ability to discipline students for harmful speech that originates off-campus. (8) Among students, it has led to concerns about when, if ever, they can express themselves freely without fear of punishment from school officials. (9) In the lower courts, this confusion has also led to the emergence of many different approaches governing the discipline of students for their speech--creating a patchwork of fragmented policies across jurisdictions. (10)

The Supreme Court addressed this issue of whether the First Amendment prohibits school officials from regulating speech created by students off-campus for the first time in June 2021 when it decided Mahanoy Area School District v. B.L. (11) The decision was announced amidst a time when student Internet usage reached all-time highs, as schools across the country were forced to switch from in-person to online learning to stop the spread of COVID-19. (12) This period was further marked by growing concerns about the adverse effects of social media on youth mental health, as researchers and academics reported connections between increased social media usage among teenagers and elevated rates of anxiety, depression, and body image issues. (13) Due to these circumstances, many had high hopes that the Supreme Court would end this uncertainty surrounding schools' authority to discipline students for their off-campus speech and provide clear guidance for schools and lower courts to rely upon. (14) However, in Mahanoy, the Court did anything but--merely providing a highly particularized decision that left for "future cases to decide where, when, and how" schools' regulation of off-campus student speech may violate the First Amendment. (15)

In light of the Internet dramatically expanding the reach of students' speech, the Mahanoy opinion's vague description of schools having a "somewhat less[er]" authority to regulate off-campus speech must be clarified to provide school administrators and lower courts with a workable standard for determining what actions are appropriate in the future. (16) Moreover, because of the latitude given to the lower courts to define what these vague standards mean, Mahanoy essentially empowers district court judges to give effect to their policy preferences on this issue, creating varied understandings of the scope of students' free speech rights across the country. (17) Because of these problems, this Note proposes that the Supreme Court abandon its current approach of considering the location from which student speech originates. Instead, it argues that the Court should adopt a multi-step sequential evaluation process, modeled mainly after the five-step sequential evaluation process used by the Social Security Administration for disability determinations. (18) This proposed test would provide for greater efficiency, fairness, and predictability among the lower courts. (19) Under this test, students bear the burden of demonstrating that the speech for which they were disciplined did not have a "sufficient nexus" to the school; (20) or, if there was a nexus, that it did not fall within the categories of speech the Court has deemed to be within the purview of schools to regulate. If the student successfully meets this burden, the burden of proof shifts to the school to show that the challenged speech posed a "reasonably foreseeable risk" of "material disruption" to the school's pedagogical interests. (21)

Before delving into the proposed test, this Note will first provide a brief overview of the First Amendment, Supreme Court precedent governing student speech, the emergence of the Internet and social media, the state of student social media usage, and the lower courts' approaches to regulating off-campus student speech in the Internet era. Next, it will elaborate upon why the Supreme Court's current approach for adjudicating student speech cases is inadequate in terms of providing guidance to students about the scope of their speech rights. This will demonstrate the need for a clarified test to guide school administrators and the lower courts' decision-making processes. This section will further outline the proposed test for evaluating the breadth of schools' authority to regulate off-campus student speech. Finally, this Note will conclude with closing thoughts on the need for the Court to replace the indeterminate guidelines it provided in Mahanoy with a more workable test to govern schools' disciplinary authority over off-campus student speech.

2. BACKGROUND

   1. The First Amendment and the Right to Free Speech

      The First Amendment of the United States Constitution provides that "Congress shall make no law... abridging the freedom of speech..." (22) As the First Amendment contains no definition of what constitutes "the freedom of speech," our understanding of the scope of this freedom comes from Supreme Court opinions. (23) In this regard, while the language of the First Amendment only explicitly bans Congress from taking actions that may chill citizens' speech, the Court has interpreted the free speech rights it confers to be...