PUT MAHANOY WHERE YOUR MOUTH IS: A CLOSER LOOK AT WHEN SCHOOLS CAN REGULATE ONLINE STUDENT SPEECH.

• Author: Klaus, Courtney

INTRODUCTION

It was the Snapchat story that sparked four years of litigation, (1) viral press coverage, (2) and a trendy t-shirt design (3): "Fuck school fuck softball fuck cheer fuck everything." (4) By June of 2021, it was finally setded law: high school sophomore Brandi Levy's cathartic Snapchat rant after failing to make the varsity cheerleading team is protected speech that falls outside the disciplinary authority of her public high school. (5)

Though the Supreme Court's decision in Mahanoy Area School District v. B.L. was lauded as a "big[] free speech victory" (6) for public school students, the Supreme Court actually took a far more restrained approach to online student speech than the previous Third Circuit opinion. (7) Instead of holding that a school simply can never regulate any online or off-campus speech, the Court applied a test from Tinker v. Des Moines Independent Community School District to determine whether Levy's particular kind of online speech was punishable by her school. This Tinker test considers whether a student's speech or expression "materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the school" or "collid[es] with the rights of others." (8) Reception to the Court's Mahanoy decision has been mostly positive, and commentators in the legal community say the court made the appropriate call. (9) However, in a digital age where online activity is used as an outlet for severe bullying, harassment, and threats, the Tinker test alone is too imprecise to provide lower courts and public schools adequate guidance on when online student speech can be disciplined.

Various approaches to public school authority over online student speech present less of a circuit "split" and more of a "splintering." The question of whether off-campus online speech should be susceptible to school discipline is particularly hard to tackle as online activity encompasses an especially wide array of speech ranging from mere profanities to school shooting threats. Before the Supreme Court reviewed Mahanoy, approaches to this question varied from establishing a "sufficient nexus" to a school's pedagogical interests, (10) to using a "foreseeable risk" of substantial disruption test. (11) The Third Circuit, meanwhile, outright refused to apply the Tinker test to off-campus speech and categorically protected online student speech from any public school regulation. (12) After Mahanoy, the Third Circuit's approach has explicitly been taken off the table, while the other two appear inconsistent with the Supreme Court's approach. However, each of these approaches to Tinker only seem to explore its first prong, the substantial disruption prong. Tinkers second prong addresses speech that "collid[es] with the rights of others," (13) and this prong has gone relatively underexplored by courts. But this second prong could be the key to how courts justify school intervention in online activity in the future.

The Supreme Court's Mahanoy opinion clarifies that the Tinker test does apply to off-campus speech, but otherwise the majority opinion was narrow and did not provide the precise test necessary to clarify when a school can regulate harmful forms of online speech like cyberbullying or online threats. Justice Breyer, who wrote Mahanoy's majority opinion, mentioned that bullying is a possible exception for school regulation, but he used limiting qualifiers, writing: "Circumstances that may implicate a school's regulatory interests include serious or severe bullying or harassment targeting particular individuals[] [or] threats aimed at teachers or other students...." (14) Meanwhile, Justice Alito's concurrence contends that "[b]ullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech." (15)

This brief acknowledgement that cyberbullying could be an issue fails to address how the internet has exploded the potential for bullying, harassment, and threats to spread quickly on a school campus, follow students wherever they go, and create perpetual disruption in their daily lives. (16) It also fails to address the way relative anonymity and access to mass communication via the internet gives students the ability to intimidate others with threats that, if severe enough, can unintentionally lead to police investigation. (17) It is inevitable that these issues will remain in the background for the lower courts to continue to parse through. Jusdce Thomas's dissenting opinion criticized the majority's vague approach as almost certainly "untethered from anything stable" and warned that schools will be "at a loss as to what exactly the Court's opinion today means." (18)

Meanwhile, lower courts have indicated that general cyberbullying may not be enough of a compelling interest to survive the "exacting demands of strict scrutiny" as applied to criminal law statutes that prevent harassment. (19) This could imply that schools ought not attempt to broadly prohibit this kind of online activity either. At the same time, however, this could also mean that public schools may be the institutions in the unique position to discipline this kind of harmful conduct impacting minors, should a remedy for it exist at all. Stories about cyberbullying and its connection to mental illness and teen suicide have sadly become more common, (20) so it seems only natural that more and more parents are looking to the school for answers. (21)

Public schools need clearer guidance on when they can intervene when issues arise that involve online student conduct. Mahanoy acknowledges that this conduct is regulatable by schools, even if the relatively unforgiving Tinker standard is controlling. Thus, carve-outs must exist for severe online student speech which can be supervised by schools. The Mahanoy majority opinion drops hints of when schools may be allowed to regulate online student speech, but it does not explore the situations in detail. (22)

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the internet creates for schools. Part II starts by exploring how previous Circuit Court approaches no longer adequately line up with the court's approach in Mahanoy. Part II will then distinguish between three different scenarios of potentially harmful online student speech: cyberbullying directed at students, online threats directed at teachers, students, and schools, and other forms of incendiary online speech.

1. HISTORICAL BACKGROUND: TINKER TO TODAY

   Schools were not always considered, as Justice Breyer penned it, "the nurseries of democracy." (23) In fact, the Supreme Court's wisdom toward public schools used to be that "the courtroom is not the arena for debating issues of educational policy," fearing that school speech decisions "would in effect make [the Court] the school board for the country." (24)

   Conceptions of what the "public school" represents as it relates to the rights of children evolved significantly in the early twentieth century when school became compulsory. (25) A new trend began to suggest that there was some value in diverse demonstrations of independence and identity at these institutions. Laws that regulated teaching foreign language (26) were struck down, and a controversial decision which previously allowed schools to punish students for refusing to salute to the national flag was reversed. (27) As the population ballooned, so too did the influence of public schools, which are now responsible for the day-to-day lives of "at least one-sixth of the U.S. population." (28) Court cases arising from public school policies over the past hundred years encompass some of the most doctrinally consequential and hotly contested judicial decisions regarding race, sex, religion, patriotism, and safety. (29) By the 2000s, not only had the barrier between court and school district deteriorated, but schools would be considered by some as "our most significant theaters of constitutional conflict." (30)

   1. The School Speech Cases

      If the dramatic reconceptualization of the role of the public school in American society could be credited to a single case, it would be Tinker v. Des Moines Independent Community School District. (31) On December 9, 1965, Senator Robert F. Kennedy publicly announced his support for an extended truce with the Vietcong over Christmas. (32) Three teenagers, inspired both by Kennedy's proposal and their own sorrow for those who died in the Vietnam War, (33) were "determined to publicize their objections" to the war by wearing black armbands to school. (34) They did so despite warnings from their schools that wearing the bands would result in suspension. (35) Though the students twice challenged their suspensions in court, the district court dismissed their case, holding that the vehement passions surrounding the war meant the armband demonstration was "likely to disturb" a disciplined classroom. (36)

      The Supreme Court disagreed in a landmark decision which held that the students' armband protest was a symbolic act protected by the Free Speech Clause. (37) Justice Fortas famously wrote in the majority opinion that " [i] t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (38) A school was to be a...