Let’s say you have a situation where you have a severely autistic individual, a person with Tourette’s, dyslexia, or some kind of severe learning disability, all of which can lead to anger when the person gets frustrated. To be clear, I am not saying that all persons with disabilities are prone to anger more so than anyone else. I am saying that it is realistic to say that K-12 students with disabilities of various kinds may get extremely frustrated causing them to act out. Let’s say they engage in speech off-campus where those frustrations come to the fore. Does it matter if their IEP or their 504 plan makes note of their ability to get frustrated and then lash out? Perhaps, the IEP or a 504 plan even has an anger management plan in it. What are the considerations?

The case of the day actually doesn’t deal with disability rights at all, but rather deals with the rights of all K-12 public school students to engage in speech while off-campus. The case is Mahanoy Area School District v. B.L. decided by the United States Supreme Court on June 23, 2021. The case involved a person who failed to make the cheerleading team and then put a couple of different posts up on Snapchat. Someone screenshotted those posts, and the plaintiff wound up being suspended from the junior varsity cheerleading team for an entire year. She sued alleging violations of her free speech rights. It eventually made its way to the United States Supreme Court. As usual the blog entry is divided into categories and they are: why disciplining K-12 public school students for off-campus speech is going to be very difficult; just when might you be able to discipline a K-12 public school student for off-campus speech; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Why Disciplining K-12 Public School Students for Off-Campus Speech is Going to Be Very Difficult (Justice Breyer’s Majority Opinion).

1. When it comes to off-campus speech, a school rarely stands in loco parentis (in the shoes of the parent).
2. Geographically speaking, off-campus speech normally falls within the zone of parental rather than school related responsibility.
3. Courts have to be skeptical of a school’s effort to regulate off-campus speech 24-7.
4. American Public schools are nurseries of democracy and must include the protection of unpopular ideas.

Mitigating Factors to Consider:

1. The postings appeared outside of school hours on her own time from a location outside the school and the language used did not identify the school or target any member of the school’s community.
2. No reason to believe that the plaintiff’s parents had delegated to school officials their own control of their child’s behavior at the restaurant where the postings were made from.
3. The vulgarity used in the posts encompassed a message of irritation and criticism of the school and cheerleading communities.
4. The school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
5. No evidence existed of substantial disruption of the school activity or threatened harm to the rights of others that might justify the school’s actions. In fact, the evidence was entirely to the contrary. Also, little evidence of any serious decline in team morale to the point where it created a substantial interference or disruption of the school’s effort to maintain team cohesion.

II

Just When Might You Be Able to Discipline a Public School K-12 Student for Off-Campus Speech?(Justice Alito’s Concurring Opinion)

1. None of the Supreme Court’s prior cases dealt with off-campus speech.
2. The doctrine of in loco parentis rarely applies to off-campus speech.
3. The only possible theory for disciplining a student for off-campus speech is that parents consented on behalf of the child to the relinquishment of some of the child’s free-speech rights.
4. Parents consent to a public school’s exercise the degree of authority commensurate with the task that the parents ask the school to perform. In other words, they relinquish the measure of authority to allow the school to exercise their state-mandated educational mission as well as to allow them to perform any other function to which parents expressly or implicitly agree, such as giving permission for a child to participate in a curricular activity or to go on a school trip.
5. Enrollment cannot be treated as a complete transfer of parental authority over a student’s speech because in our society, it is parents and not the State that have the primary authority and duty to raise, educate, and inform the character of the children.
6. Parents can reasonably be understood to have delegated to their child’s public school the authority to regulate the speech in the following situations: 1) speech taking place during or as part of what amounts to a temporal or spatial extension of the regular school program, such as: online instruction at home; assigned essays or other homework; and transportation to and from school; 2) statements made during other school activities in which to participate need parental consent, such as school trips, sports, and other extracurricular activities taking place after regular school hours off the school premises; 3) afterschool program for students who would otherwise be without adult supervision during that time, such as abusive speech occurring while students are walking to and from school;
7. Student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students addressing matters of public concern, such as, by way of example, politics, religion, and social relations is almost always beyond the regulatory authority of a public school.
8. While schools may suppress disruption from protected speech, they cannot punish protected off-campus speech that prompted students to engage in the misconduct.
9. There are three common categories where schools often step in with respect to speech: 1) perceived threat to a school’s administrators, teachers, other staff members, or students; 2) speech criticizing or deriding school administrators, teachers, or other staff members. Public k-12 schools can certainly demand respect in this situation, but parents do not relinquish their children’s ability to complain in appropriate manner about wrongdoing, dereliction, or even plain incompetence; and 3) bullying and severe harassment, which are not easy concepts to define with precision with respect to the regulation of speech.
10. Unflattering speech about a school is protected.
11. It is not reasonable to infer that the school was given the authority by plaintiff’s parent to regulate her choice of language when she was off school premises and not engaged in any school activity.

Justice Thomas dissented saying that in loco parentis at the time of the founding fathers would have included the regulation of off-campus speech. (Justice Alito in several different footnotes in his opinion, very much disagrees with this argument).

III

Thoughts/takeaways

1. This case can be considered the constitutional lawyer’s full employment act. If you are a K-12 school and don’t have a constitutional lawyer on retainer, you most certainly need one now.
2. In a footnote, Justice Alito points out that the case did not involve speech by a student at a public college or university. For several reasons, including age, independence, and living arrangements of college students, regulation of their speech may raise very different questions from those presented in this case. So, this case does not apply to college students at public colleges or universities.
3. 90% of K-12 students attend public schools.
4. If an IEP or a 504 plan has references to anger issues, temper, or even an anger management plan, then the student with a disability may also be able to fall back on that wording to minimize any discipline in addition to the protections offered by this case. In such cases, there is going to be a real issue of the student’s intent v. whether they were just acting in a way related to their disability based upon the circumstances they were facing. If the latter, there may be questions of whether reasonable modifications to the policy, program, activities might not be in order instead of discipline.
5. Did I mention that every K-12 public school needs to have a constitutional lawyer on retainer?
6. It is clear that disciplining K-12 public school students for off-campus speech is now going to be an extremely difficult proposition. If you throw in students with disabilities with 504 plans and IEPs referencing how they act out when frustrated, it becomes even more difficult.
7. If a student has a disability that is prone to acting out when very frustrated, it would be a good idea to get that into the IEP or the 504 plan. As a general proposition, IEP’s and 504 plans should be as comprehensive as possible.
8. Expect to see a lot of litigation in the future trying to figure out what the parameters are for public K-12 schools disciplining students for disruptive off-campus speech.
9. As Justice Alito noted, the principles discussed in this case do not neatly carry over to colleges and universities, especially residential ones. As a result, look for lots of future litigation with respect to public colleges and universities disciplining students for off-campus speech.
10. The majority opinion does not give much guidance as to when public K-12 schools can step in with respect to off-campus speech. Instead, the majority opinion just says that it will be very difficult for public K-12 schools to do so. Look for Justice Alito’s opinion to become very frequently read by special education/504 attorneys and constitutional law attorneys because he attempts to give that guidance.
11. When bullying and harassment off-campus is sufficient for a public K-12 school to step in, remains to be worked out. Might there be an analogy to the hostile work environment line of cases?
12. The decision applies to public K-12 schools. Private schools have much more flexibility when it comes to limiting freedom of speech.