Education Law Notes  

A pending case before the U.S. Court of Appeals for the Second Circuit may have a direct impact on Connecticut Schools’ ability to discipline students for speech that occurs via social media.

By way of background, schools in the United States have historically been able to restrict the free speech rights of their students in a more intrusive manner than in society as a whole. Generally, schools have the right to prohibit or restrict speech:

(1) That is vulgar, lewd, indecent, or plainly offensive. Bethel v. Fraser, 478 U.S. 675, 682 (1986);

(2) When the limitation is reasonably related to legitimate educational concerns, such as with school sanctioned publications and activities.  Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266 (1988);

(3) Or if it causes a substantial and material disruption of the school's operation.  Tinker v. Des Moines Public Schools, 393 U.S. 503, 506 (1969).

Given the prevalence of social media use by students in today’s society, schools have been grappling with whether, and in what circumstances, they can limit or discipline student speech that occurs outside the bounds of school and on a social media platform. In 2021 the U.S. Supreme Court decided a case addressing the tension between student off-campus use of social media and the right of school officials to regulate disruptive conduct. In Mahanoy Area School District v. B.L., a high school student -- with the initials “B.L.” -- , was disappointed with not making the varsity cheerleading team and took to her Snapchat to post an image of her and her friend with their middle fingers raised and the caption “F*** school f*** softball f*** cheer f*** everything.” 141 S. Ct. 2038 (2021). After discussions with the principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. The coaches suspended B. L. from the junior varsity cheerleading team for the upcoming year. 

The Supreme Court held 8-1 that the school district’s suspension of B. L. from the J.V. cheerleading team violated her First Amendment rights.  The Court found no evidence in the record of a “substantial disruption” of a school activity or threatened harm to the rights of others that might justify action. The record showed that discussion of the matter took up a few minutes of an algebra class of the courts of a few days and that and some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats. When one of B. L.’s coaches was asked directly if she had “any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking ... about it,” she responded simply, “No.”

While finding that B. L.’s First Amendment rights were violated the Court acknowledged that the district had significant interests in regulating some off-campus conduct such as:

• Serious or severe bullying or harassment targeting particular individuals;
• Threats aimed at teachers or other students;
• The failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and
• Breaches of school security devices, including material maintained within school computers.

Now, once again, whether off-campus social media posts can subject a student to discipline by a school district is front and center at the Second Circuit Court of Appeals – the federal appellate court with jurisdiction over cases arising in Connecticut, along with New York and Vermont, where the Court took an appeal from the Southern District of New York after that court upheld a school’s decision to suspend a student for a picture, taken off of school grounds, that was posted on social media outside of school hours. Leroy v. Livingston Manor Center School District (S.D.N.Y. Apr. 5, 2024).

In the Leroy case, in 2021, in the wake of the death of George Floyd, a student drove with three fellow students to pick up one of their siblings from a private dance class. While waiting in the studio parking lot, the student and his friends took a photograph simulating the incident that led to George Floyd’s death. Before leaving the dance studio, the student posted the photo to his Snapchat with the caption “Cops got another.”

When the student posted the photo, it was visible to all of his Snapchat friends—approximately 60 to 100 people, including a “good amount” of students at Livingston Manor High School. Shortly after posting the photo with the caption, the student deleted his Snapchat post because his phone started “blowing up” with messages from other people threatening him and cursing him out. People even began showing up to his home and the student’s parents’ places of employment.

By 9:00 pm that night, the school administrators had received a barrage of communication regarding the posting. Members of the community sent emails to District administrators, employees, and officials complaining about the photos. The emails further criticized the District for purportedly tolerating the behavior, and demanded the District take disciplinary action. The following day at school, students discussed the photos during and between classes, and high school staff and teachers discussed the social media posts in their classrooms.  Multiple staff members also approached district administrators requesting to know how the District planned to respond to the unrest created by the photos.

That same day, the school held an assembly attended by all students, teachers, guidance counselors, and building administrators in grades 7 through 12 to address the incident. District administrators also informed students that school counselors would be available for students who needed counseling in relation to the photos.  After the assembly, students held a planned demonstration to express their disagreement with the photos. After the demonstration ended, students relocated to the school's health room to further discuss the photos. Throughout the school day, state trooper and law enforcement officers from the sheriff's department remained on school grounds, and the school received multiple media requests regarding the photos.

The student was suspended by the District as a result of his actions, and he filed an action with the District Court. The District Court ultimately granted the School District’s motion for summary judgment, finding that:

“The District has an interest in maintaining order within its schools, promoting tolerance and respect, and ensuring students feel comfortable and secure within the school environment. Accordingly, the Court finds not only that District personnel reasonably portended a substantial disruption given the response to the photos the same night they were posted, but also that Defendants have established actual disruption based on the events occurring at the school the day after the photo was posted. Accordingly, the Court finds Defendants did not infringe on Plaintiff's First Amendment free speech rights when they disciplined [student].”

While school administrators would likely argue that the disruptions described above qualify as “substantial” given the amount of instructional time that was devoted to discussing the photos, the responses required from District administrators, the need for student counseling services and the presence of law enforcement officers, the question is now up to the Second Circuit to decide.

Given the Supreme Court’s holding in Mahanoy it seems likely that the Second Circuit may find that the substantial disruption standard for off-campus conduct necessary to impose student discipline has been met.  However, it will be interesting to see exactly how the Court decides Leroy and what points the Court emphasizes.  Should the Court find that such disruption was not substantial enough to warrant student discipline, Connecticut schools will find themselves with fewer avenues to pursue in regulating speech that occurs on student’s social media platforms.

If you have any questions, please feel free to contact a member of our School Law practice.