Table of Contents Introduction I. The Pre-Mahanoy K-12 First Amendment Landscape A. Tinker v. Des Moines Independent Community School District B. Bethel School District No. 403 v. Fraser C. Hazelwood v. Kuhlmeier D. Morse v. Frederick II. The Off-Campus Speech Dilemma A. The Reasonably Foreseeable Test B. The Nexus Test C. Case-by-Case Approach III. Mahanoy s Inadequate Response A. Relevant Factual Background B. Tinkering with Tinker. The Mahanoy Majority Opinion IV. A New Gold Standard for Free Speech in K-12 Schools The Integrated Contextual Disruption Test A. The Integrated Contextual Disruption Test B. Limitations Conclusion
Introduction
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
--Justice William Brennan, Jr. (1)
The recent Supreme Court decision in Mahanoy Area School District v. B.L. ex rel. Levy expanded the authority of school leaders to regulate student speech by acknowledging that off-campus speech can be regulated under special circumstances. (2) The Court, however, declined to clearly define the contexts in which the exercise of school discretion to regulate student off-campus online speech is constitutionally permissible. (3) The absence of a constitutional standard leaves school leaders with unbridled discretion to regulate off-campus online speech. This increases the likelihood that students' First Amendment rights will be violated if their expression is unpopular or controversial. While it is important for school leaders to have the authority to regulate speech to maintain an environment conducive to learning, such authority should have constitutionally defined limits. Ideally, public schools, which foster democratic values and ideals of good citizenship, should encourage a marketplace of ideas that embraces diverse perspectives and teaches students how to civically engage and fully participate in our democratic process. This is especially pertinent in light of the ongoing social, cultural, and political debates permeating today's society, often undermining and disrupting the educational mission of our K-12 school systems.
The expansion of school leaders' authority to regulate student speech is occurring during a period of political upheaval and progressive social activism in K-12 schools as students, especially those from marginalized populations, advocate for myriad controversial issues affecting their communities such as gun control, reproductive rights, and LGBTQI+ rights. (4) Students have played a unique role in political and social movements throughout our nation's history. (5) During the Civil Rights era, for example, students marched in protest of segregation, participated in sit-ins, and challenged racism through various other forms of advocacy. (6) Today's students demonstrate the same unyielding commitment to advocacy as past generations. For instance, recently, students attending high schools and universities in more than twenty-five states organized numerous protests to advocate for reproductive rights in response to the Supreme Court's overturning of Roe v. Wade. (7) Additionally, students throughout the country organized school walkouts in response to Florida's "Don't Say Gay" law (8) and the "Stop WOKE Act," (9) which collectively have advanced the weaponization of woke tropes to suppress speech and maintain the subordination of marginalized groups. (10) Student protests about controversial political issues demonstrate how the politicization of education has transformed many schools into battlegrounds for the ongoing culture wars permeating our social, cultural, and political systems. (11)
The internet and social media have become critical components of students' social activism because these technologies serve as ubiquitous methods of communication when students speak to their peers, families, and society in general. (12) Social media allows students to share their opinions and perspectives and has the potential to enable collective action on a local, national, or even global scale. (13) As the pace of social media use by students increased exponentially, students' free-speech rights were jeopardized due to uncertainty regarding whether students' off-campus online speech was afforded the full protections of the First Amendment. (14) The existing constitutional framework governing students' free-speech rights, Tinker's Material and Substantial Disruption Test, allows school officials to regulate student speech that is reasonably forecast to cause a material disruption to the school learning environment. (15) The doctrinal and conceptual tension under the First Amendment consists of balancing the imperatives of free-speech absolutism underlying the marketplace of ideas with the corrosive and disruptive impact of speech that undermines the learning environment. While it is presumptively unconstitutional for a state to regulate the content of speech based on which messages it finds favorable or not, (16) the unique context of the school changes this analysis because while students do not leave their rights at the schoolhouse door, they must be educated in a manner that reflects the educational mission of the school. The Material and Substantial Disruption Test does not explicitly state its applicability to off-campus speech, thereby creating many ambiguities regarding whether off-campus expression is protected speech or outside the scope of a school's disciplinary reach. (17) The doctrinally incoherent body of circuit court interpretations presented seemingly insurmountable challenges for school officials as they attempted to regulate off-campus speech in the absence of established constitutional precedent. (18) Moreover, students' free-speech rights were often usurped by overzealous school officials exploiting the lack of legal precedent and censoring off-campus speech not for a pedagogical reason, but because the speech was unpopular or controversial. (19)
The Supreme Court's acceptance of the Mahanoy Area School District's petition for certiorari set the stage to settle the debate regarding the applicability of the Tinker test to off-campus speech. (20) However, this highly anticipated decision left school officials with more questions than answers. To much dismay, the Court in Mahanoy Area School District v. B.L. ex rel. Levy declined to articulate a clear constitutional standard for regulating students' off-campus speech. (21) Instead, the Court acknowledged that public schools have a special interest in regulating some off-campus speech but failed to articulate the constitutional boundaries of that authority. (22) This hesitancy is due to the Court's reluctance to set a clear bright-line rule for off-campus speech expressed through digital platforms (23)--the setting is not in the school, the speech could be inherently private, yet the speech could reach into the school and disrupt the classroom, the curriculum, and the environment of the school. Thus, the Court expanded the discretionary authority of school leaders to regulate off-campus online speech, without any constitutional limits on the scope of that authority. (24) How can students be protected from viewpoint discrimination by school administrators without a constitutional framework governing the context, category, and content in which off-campus online speech may be regulated? How far beyond the schoolhouse door does the disciplinary arm of school officials reach? What are the constitutional boundaries for delineating protected versus unprotected off-campus online speech? The Mahanoy Court's failure to articulate a clear constitutional standard leaves students vulnerable to school officials censoring their online speech under the guise of maintaining an orderly school environment.
Mahanoy is a doctrinal paradox, affirming student expressive rights for the first time since Tinker, yet expanding the discretionary power of school administrators to regulate speech with no definable limits. (25) There is no test, and this absence portends a series of ad hoc decisions based on subjective judgments unmoored from bedrock First Amendment principles, leaving students at risk for unconstitutional infringements on their First Amendment rights. By contrast, this Essay offers a path toward safeguarding students' First Amendment rights to engage in online expressive activities, political speech, and symbolic speech off campus through the adoption of a new constitutional standard: the Integrated Contextual Disruption (ICD) Test. The proposed new standard strikes the necessary balance between a school's regulatory interest in maintaining an environment conducive to learning and the competing value of student free-speech rights. Under the proposed ICD Test, students' off-campus online speech is not protected if:
(1) The speech occurs off campus and through an online platform;
(2) The actor/speaker intends to convey a message that targets a member of the school community in a negative manner;
(3) The message is disseminated in an open, accessible online or other medium; and
(4) There is a strong basis in evidence, supported by the factual record, that such a message has caused or is reasonably foreseeable to cause a substantial or material disruption.
The proposed constitutional test maintains the core tenets of Tinker's Material and Substantial Disruption Test, providing school leaders with the necessary authority to maintain the appropriate discipline and operation of the school, while still preserving students' constitutional rights to the greatest extent possible. The ICD Test is unique because it encompasses a balancing test that is anchored by a strong basis in evidence test that cabins the discretionary authority of school officials to help safeguard students' free-speech rights without undermining school discipline. While no balancing framework...
