The Internet has given rise to considerable cyberbullying among students. Quite often the bullying occurs off-campus but is targeted at fellow students or administrators. The Third Circuit has previously considered and found in favor of free speech in two instances where students bullied school principals. Lisa S. Blatt, the attorney for the School Board, summed it up best during oral arguments; “When it comes to the Internet,” Blatt argued, “things like time and geography are meaningless.” Levy’s case presents the Court with the thorny issue of where the school steps start in our current virtual world.
Levy posted her Snapchat in 2017. At that time, schools were grappling with how to handle off-campus cyberbullying between classmates. Many authorities agree that under the Tinker standard, school officials can intervene if the off-campus speech has created or could create a substantial disruption or interference at school. Students have a right to feel secure on campus, and therefore a school has the power to discipline off-campus speech, even at the expense of a student’s right to free speech. Courts have applied this holding in a way that was favorable to the school to instances involving Internet chatter. In Rosario v. Clark County School Dist., a 2013 District Court upheld a school administration’s decision to discipline and punish a student for tweets a minor made while at a restaurant about a basketball coach who dismissed him from the team. In Kowalski v. Berkeley Cnty. Schs., the Fourth Circuit ruled that a school did not violate a student’s free speech rights by suspending her for creating and posting to a webpage that ridiculed fellow students.
On the other hand, in instances where students could prove in court that their off-campus social media did not substantially disrupt the school the student has prevailed. Consider, for example, Layshock v. Hermitage School Dist., in which the full Third Circuit ruled that the school infringed on a student’s First Amendment rights by suspending him for posting an online parody of the principle. The Court ruled the same way on almost the same set of facts in J.S. v. Blue Mountain School Dist. But to date, among Federal Circuit Courts, only the Third Circuit has sided with the school in instances of off-campus online speech. And even those cases suggest that there are instances where a school can appropriately infringe on a student’s First Amendment Rights. In response to J.S. and Layshock, Judge Kent Jordan of the Third Circuit stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applied to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”
The Supreme Court could easily punt in this case; decide whether Levy’s Snapchat disrupted on-campus activities and leave it at that. But in this instance, the Court should not miss the opportunity to discuss the more significant issue of what rules should apply given the very real issue of blurred school boundaries. Especially since these boundaries have become even more blurred with the Pandemic. Living rooms and bedrooms across the country have become virtual classrooms. It seems impossible to suggest in today’s wired world that, as attorney Blatt suggests, there are any geographical boundaries to school. Prohibiting schools from regulating speech outside brick-and-mortar school buildings provides schools with the opportunity to prevent the severest of cyberbullying. On the other hand, expanding a schools’ reach threatens the very foundation of our constitution.
The Supreme Court decided Tinker well before the Internet was integral to our homes. Mahanoy Area School Dist. v. B.L., offers the Court the opportunity to provide much-needed guidance to school administrators who walk a tight balance between respecting First Amendment Rights and protecting the right of their students to learn in a conducive educational environment. Defining that guidance is the difficult part and with three new members of SCOTUS, it is hard to decide which way they may rule.
How do you think the Court should rule and what would your ruling be if you were a Supreme Court Justice?
