Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy

No. 20-255

IN THE

Supreme Court of the United States

________________

MAHANOY AREA SCHOOL DISTRICT,

Petitioner,

v.

B.L., A MINOR, BY AND THROUGH HER FATHER,

LAWRENCE LEVY AND HER MOTHER, BETTY LOU LEVY,

Respondents.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

BRIEF OF AMICI CURIAE NATIONAL

SCHOOL BOARDS ASSOCIATION, THE

AMERICAN FEDERATION OF TEACHERS,

THE NATIONAL ASSOCIATION OF

ELEMENTARY SCHOOL PRINCIPALS, THE

NATIONAL ASSOCIATION OF SECONDARY

SCHOOL PRINCIPALS, AND AASA,

THE SCHOOL SUPERINTENDENTS

ASSOCIATION IN

SUPPORT OF PETITIONER

________________

Francisco M. Negrón, Jr.

Chief Legal Officer

Sonja H. Trainor

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street, FL 2

Alexandria, VA 22314

Kelsi Brown Corkran

Counsel of Record

Thomas M. Bondy

Monica Haymond

Sachi Schuricht

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, N.W.

Washington, D.C. 20005

(202) 339-8400

kcorkran@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 3

ARGUMENT ............................................................. 6

I.

This Court’s Review Is Warranted In

Light Of The Uncertainty The Third

Circuit’s Decision Creates For School

Discipline. ........................................................... 6

A. The Third Circuit’s decision creates a

clear circuit split as to whether and to

what extent administrators at public

schools may regulate off-campus

student speech. .............................................. 6

B. The Third Circuit’s categorical rule

overlooks the distinction between core

academic programs and

extracurricular activities, frustrating

school officials’ ability to impose

context-appropriate discipline. ................... 11

C. The line between on- and off-campus

speech is arbitrary and anachronistic

in the social media age, when students

can disrupt the school community from

anywhere with the touch of a button. ........ 17

ii

D. This Court’s guidance is especially

needed as schools shift to remote

learning in the wake of the COVID-19

pandemic. .................................................... 23

CONCLUSION ........................................................ 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bell v. Itawamba Cnty. Sch. Bd.,

799 F.3d 379 (5th Cir. 2015)..........................18, 22

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ..............................................21

Dambrot v. Central Mich. Univ.,

55 F.3d 1177 (6th Cir. 1995)................................13

Doe v. Valencia Coll.,

903 F.3d 1220 (11th Cir. 2018)............................18

Doninger v. Niehoff,

527 F.3d 41 (2d Cir. 2008) ................. 12, 13, 15, 19

Kowalski v. Berkeley Cnty. Schs.,

652 F.3d 565 (4th Cir. 2011)..........................18, 19

Layshock ex rel. Layshock v. Hermitage

Sch. Dist.,

650 F.3d 205 (3d Cir. 2011) ..................... 16, 17, 20

R.L. ex rel. Lordan v. Cent. York Sch. Dist.,

183 F. Supp. 3d 625 (M.D. Pa. 2016) ..................20

Lowery v. Euverard,

497 F.3d 584 (6th Cir. 2007).............. 12, 13, 15, 17

Morse v. Frederick,

551 U.S. 393 (2007) ..............................................16

iv

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) .................................. 3, 6, 8, 15

United States v. Alvarez,

567 U.S. 709 (2012) ..............................................22

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ..............................................12

Wildman v. Marshalltown,

249 F.3d 768 (8th Cir. 2001).................... 14, 15, 16

S.J.W. ex rel. Wilson v. Lee’s Summit

R-7 School Dist.,

696 F.3d 771 (8th Cir. 2012)..........................19, 20

Wynar v. Douglas Cnty. Sch. Dist.,

728 F.3d 1062 (9th Cir. 2013)..............................17

Statutes

14 Del. Code § 4164 .....................................................9

14 Del. Code § 4164(b) ..............................................10

14 Del. Code § 4164(f)(1) ...........................................10

14 Del. Code § 9304 .....................................................9

N.J.S.A. § 18A:37-14 .................................................10

N.J.S.A. § 18A:37-15 .................................................10

N.J.S.A. § 18A:37-16 .............................................9, 10

N.J.S.A. § 18A:37-17 ...................................................9

v

Other Authorities

Monica Anderson & JingJing Jiang,

Teens, Social Media & Technology

2018, Pew Research Center (May 31,

2018), https://tinyurl.com/uzcepg3 ......................18

Ashleigh Atwell, Georgia High School

Students Expelled After Posting

Video Detailing a Racist Recipe for

Black People, Atlanta Black Star

(Apr. 19, 2020),

https://tinyurl.com/y2wn29w4 ...............................7

Brian Blair, Racist Social Media Photo Draws

Protest, The Republic (Mar. 11, 2020),

https://tinyurl.com/y88c6rwb.................................7

Complaint, Kutchinski v. Freeland

Comm’y Sch. Dist., No. 19-13810

(E.D. Mich. filed Dec. 30, 2019) .....................21, 22

Trisha Powell Crain, Alabama High

School Students Filmed Using

Racist Slurs, AL.com (Mar. 4, 2019),

https://tinyurl.com/yxl86293 .................................7

Cyberbullying, Merriam-Webster

Online Dictionary (2020),

https://tinyurl.com/vkndzyc ...................................9

Cyberbullying Research Center,

Bullying Laws Across America,

https://tinyurl.com/ybjo82ad..................................9

vi

Sarah Darmanjian, Organizations Say

Rise in Cyberbullying Likely During

COVID-19 Isolation, News10

(Apr. 8, 2020),

https://tinyurl.com/y2gwb2x9 ..............................24

Christopher B. Dolan, There Are Ways

to Deal With Cyberbullying in

School, S.F. Examiner (Aug. 20,

2020), https://tinyurl.com/y4uurfak ....................23

Facebook Company Info,

https://tinyurl.com/vlx9wc5 ...................................5

Brian Fitzpatrick, et al., Virtual

Charter Schools and Online

Learning During COVID-19,

Brookings (June 2, 2020),

https://tinyurl.com/y3gk2msd..............................23

Inst. of Educ. Scis., Indicator 10:

Bullying at School and Electronic

Bullying, National Center for

Education Statistics (Apr. 2019),

https://tinyurl.com/y5lr3xuf ................................24

Krista Johnson, A Reputation to

Uphold: LAMP Grads, Families

Claim Toxic, Racially Insensitive

Environment at Nationally

Renowned School, Montgomery

Advertiser (June 19, 2020),

https://tinyurl.com/y2s33axq .................................9

vii

Makenzie Keene, Bullies Behind Bars:

How Changes to Statewide

Cyberbullying Policy May Do More

Harm Than Good, 51 Tex. Tech L.

Rev. 333 (2019) ......................................................9

Kendall Morris, Experts Say Virtual

Learning Could Lead to an Increase

in Cyberbullying, WCNC (July 19,

2020), https://tinyurl.com/y4wen9ou ...................24

Nat’l Honor Soc’y, How to Become a

Member, https://tinyurl.com/y5b4fdje

(last visited Sept. 28, 2020) .................................17

Beatriz Oliveros, Remote Learning and

the Potential for Cyberbulling: What

Houston Parents Should Know,

KPRC2 (Aug. 28, 2020),

https://tinyurl.com/yyueul8x ...............................24

Bill Pearson, Edgecomb Educators Use

Social Media in Distance Learning,

Boothbay Register (Apr. 14, 2020),

https://tinyurl.com/y69rd4kp ...............................23

Martin Slagter, Saline Students Sue

School District for Punishment From

Racist Snapchat Group, Mlive (Feb.

11, 2020),

https://tinyurl.com/y3xp3g2n ................................7

viii

Peter Suciu, Screen Time and Social

Media Use Among Teens Continues

to Rise, Forbes (May 21, 2020),

https://tinyurl.com/yxo4xr3e ...............................18

Torrey Trust, The 3 Biggest Remote

Teaching Concerns We Need to Solve

Now, EdSurge (Apr. 2, 2020),

https://tinyurl.com/y6azcjof .................................24

INTEREST OF AMICI CURIAE1

The National School Boards Association

(“NSBA”) is a non-profit organization founded in

1940 that represents state associations of school

boards and the Board of Education of the U.S. Virgin

Islands. Its mission is to promote excellence and equity in public education through school board leadership. Through its member state associations, NSBA

represents over 90,000 school board members who

govern approximately 13,800 local school districts

serving nearly 50 million public school students.

NSBA strives to promote public education and ensure

equal educational access for all children. Through legal and legislative advocacy, and public awareness

programs, NSBA promotes its members’ interests in

ensuring excellent public education and effective

school board governance. It closely monitors legal issues that affect the authority of public schools and

regularly participates as amicus curiae in court cases.

It filed an amicus brief in support of the Mahanoy

Area School District before the Third Circuit in this

case, and has filed amicus briefs in this Court in several cases raising a range of issues. See, e.g., Easton

Area Sch. Dist. v. B.H. ex rel. Hawk, 572 U.S. 1002

(2014); Blue Mtn. Sch. Dist. v. J.S. ex rel. Snyder, 565

U.S. 1156 (2012); Christian Legal Soc’y Chapter of the

Univ. of California v. Martinez, 558 U.S. 1076 (2009).

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2

The American Federation of Teachers, AFLCIO (“AFT”) is a national labor union that represents 1.7 million members nationwide. The largest

segment of AFT’s members are public school educators and educational support personnel, many of

whom work in school districts that currently are engaging in remote instruction of students.

The National Association of Elementary

School Principals (“NAESP”) is the leading advocate for elementary and middle-level principals in the

United States and worldwide. NAESP believes that it

is critical for school leaders to be able to appropriately

respond to student actions that interfere with learning and the operations of the school.

The National Association of Secondary

School Principals (“NASSP”) is the leading organization of and voice for principals and other school

leaders across the United States. NASSP’s members

believe that school officials must retain the legal authority to address student behavior that disrupts

school operations.

The School Superintendents Association

(“AASA”) represents more than 13,000 school system

leaders and advocates for the highest quality public

education for all students. Our Nation’s superintendents believe that school officials must continue to

have authority to address student behavior that disrupts the learning environment.

The Third Circuit’s decision undermines the authority of public school officials to effectively discipline students who engage in off-campus speech that

3

harasses others or otherwise foreseeably disrupts the

school environment. If schools cannot appropriately

discipline harassing and disruptive students, they

will be unable to guarantee safe learning environments or proper and equitable educational opportunities for students in general, including those who

already face marginalization due to their disability,

race, ethnicity, or socio-economic status. And the

Third Circuit’s decision threatens to undermine not

only academic programs that are central to schools’

educational missions, but also extracurricular programs that enrich the experience of students with

special opportunities to lead and to learn teamwork,

and that, properly conducted, are a source of pride to

entire communities.

The Third Circuit’s decision departs from this

Court’s decision in Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969), and

the decisions of other courts of appeals that amici and

their members have relied on to craft school policies

and to advise school districts. The lack of uniformity

that the Third Circuit’s ruling creates in this critical

area warrants this Court’s review.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Third Circuit’s stark line between off-campus

and on-campus speech is untenable, especially in the

age of social media. In the real world, school officials

must navigate the turbulent universe of K-12 schools,

where students and staff frequently use online platforms, and where teachers and administrators must

be able to make informed judgments about whether

4

and how to discipline disruptive students without

running afoul of the First Amendment.

The costs of a wrong decision cannot be overstated. Every teacher and administrator knows that

a decision not to address the behavior of a harassing

or disruptive student can have consequences that extend to other students and the larger school community. Not intervening to prevent a student’s

harassment means losing an opportunity to protect

the harassed student’s safety and sense of well-being,

and likewise losing an opportunity to safeguard the

learning environment for others in the community.

But a decision to discipline a student for speech that

a court might later decide is protected by the First

Amendment can lead to protracted litigation and an

onerous damages award. The Third Circuit has made

that balancing exercise unnecessarily fraught.

The Third Circuit’s purported bright-line test for

separating off- and on-campus speech is wrong and

confusing, and fails to offer any clear-cut answers. Because the ruling below directly conflicts with that of

other circuits, it is now unclear if schools can regulate,

among other things, racist, vulgar, or sexually harassing speech that occurs online and off campus, even if

that speech is directed at other students or school administrators, and even if it is otherwise reasonably

likely to materially disrupt on-campus life. Compounding the confusion are state laws—including provisions in jurisdictions within the Third Circuit—that

require schools to address off-campus bullying.

To make matters worse, in assessing the extent to

which school officials may properly respond to

5

harassing or disruptive student speech that is initiated off campus, the Third Circuit failed to consider

the type of school activity at issue—here, extracurricular sports—or the nature of the discipline, here, losing a privilege rather than access to the classroom. As

a practical matter, schools must have the flexibility to

address disruptive behavior differently in different

circumstances, including with respect to extracurricular activities that can play a vital role in a student’s

overall educational experience.

The Third Circuit’s anachronistic line between

on-campus and off-campus speech is especially unjustified in the age of social media, when students can

interact with each other online from any location and

at any time. Indeed, the very purpose of social media

is to provide an intimate communication experience

for people who are physically distant. See, e.g., Facebook Company Info, https://tinyurl.com/vlx9wc5 (describing Facebook’s mission as “[g]iv[ing] people the

power to build community and bring the world closer

together”). The unworkability of the Third Circuit’s

distinction is even more evident as schools respond to

the COVID-19 pandemic by shifting more in-class

teaching to online platforms.

This Court’s review is necessary to resolve the circuit split created by the Third Circuit’s misguided decision. The Court should grant the petition and

reaffirm that the nation’s public schools retain the authority to discipline students, as warranted, for offcampus student speech that threatens to interfere improperly with school operations.

6

ARGUMENT

I.

This Court’s Review Is Warranted In Light

Of The Uncertainty The Third Circuit’s

Decision Creates For School Discipline.

A. The Third Circuit’s decision creates a

clear circuit split as to whether and to

what extent administrators at public

schools may regulate off-campus student

speech.

For decades, schools have relied on this Court’s

opinion in Tinker, and its progeny, as a guide to

whether and to what extent they may regulate student speech within the bounds of the First Amendment. Tinker recognizes that students have free

speech rights, but permits school administrators to

intervene when that speech “would materially and

substantially interfer[e] with the requirements of appropriate discipline in the operation of the school.”

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 513 (1969). Since then, every circuit that has addressed the question has recognized some right by

schools to discipline students for off-campus speech

that meets Tinker’s test for being likely to cause a material and substantial disruption. See Pet. 11-15.

The Third Circuit’s split with that unanimous authority throws that settled understanding into doubt.

Under the Third Circuit’s new test, behavior that

schools considered subject to disciplinary action because of its predictable and harmful consequences for

other students and the school community now may be

7

off-limits in a potentially untouchable category of “offcampus” speech.

Take, for example, several recent situations involving racist statements on social media confronting

NSBA members’ school districts. One Georgia school

was rocked by racial tension after students posted a

TikTok video parodying a cooking show where they

made a “recipe for n-----s” by adding “ingredients” like

“black,” “don’t have a dad,” and “rob people (specifically whites).”2 The video, posted the same month as

George Floyd’s death, originated off campus—but

that did not matter to the students’ fellow classmates

who watched it in dismay and discussed the video at

school. At another school, a student photoshopped a

picture of two black students running from a robed Ku

Klux Klan member.3 The student posted the picture

on social media from off campus—but again that was

presumably irrelevant to the students who felt targeted by the message, whether they were included in

the photo or not. On another occasion, students in an

Alabama high school posted a video of themselves

drinking and making vulgar, racist comments like “f-- Jews” and “f--- n-----s.”4 All of these communications

2 See Ashleigh Atwell, Georgia High School Students Expelled After Posting Video Detailing a Racist Recipe for Black

People, Atlanta Black Star (Apr. 19, 2020), https://tinyurl.com/y2wn29w4.

3 See Brian Blair, Racist Social Media Photo Draws Protest,

The Republic (Mar. 11, 2020), https://tinyurl.com/y88c6rwb.

4 See Trisha Powell Crain, Alabama High School Students

Filmed Using Racist Slurs, AL.com (Mar. 4, 2019), https://tinyurl.com/yxl86293; see also Martin Slagter, Saline Students

8

materially disrupted academic operations at the

school even though they originated off campus.

Because these events took place outside the Third

Circuit’s jurisdiction, school administrators were able

to appropriately address the ensuing disruption to

help protect individuals affected and forestall wider

effects on the broader school community. But not so if

they had occurred in Pennsylvania, New Jersey, Delaware, or the U.S. Virgin Islands. Instead, the school

administrators in these jurisdictions likely would

have been forced to sit on their hands, losing a critical

opportunity to convey the importance of combatting

racism and preserving safe academic environments

for students of color—and indeed, all students.

When school administrators are unable to discipline students for disruptive speech, they lose an important tool to maintain a safe and supportive school

environment. See Tinker, 393 U.S. at 508 (recognizing

that schools could discipline students for speech that

infringed on “the rights of other students to be secure

and to be let alone”). Without that tool, schools are

more susceptible to claims that the learning environment is hostile or unsafe. In one elite high school, families blamed school administrators for failing to

address racist and sexual bullying by students at

school and on social media, and thus causing “a toxic,

intolerant, racially insensitive environment,” in

Sue School District for Punishment From Racist Snapchat

Group, Mlive (Feb. 11, 2020), https://tinyurl.com/y3xp3g2n

(school disciplined students who posted “WHITE POWER” and

“THE SOUTH WILL RISE AGAIN” on social media from their

homes on a non-school day).

9

which some students dropped out and at least one student committed suicide.5

The Third Circuit’s decision to hamstring the authority of public schools to discipline students for offcampus speech with on-campus effects is particularly

anomalous given that many states require schools to

address certain student speech—like bullying—regardless of whether it occurs off campus or after

school hours. “Today, all fifty states have passed some

law pertaining to bullying,” and “[m]ost states address cyberbullying specifically.”6 Many of these state

laws are based on the generally-accepted principle

that the Tinker framework allows schools to address

speech that occurs off-campus when it substantially

disrupts the school learning environment. And all

three states in the Third Circuit require schools to

adopt policies that address cyberbullying and to create reporting mechanisms to ensure that bullying is

addressed. See 24 P.S. § 13-1303.1-A; N.J.S.A.

§§ 18A:37-16–17; 14 Del. Code §§ 4164, 9304. In 2010,

New Jersey passed the New Jersey Anti-Bullying Bill

of Rights Act, which, among other things, requires

5 Krista Johnson, A Reputation to Uphold: LAMP Grads,

Families Claim Toxic, Racially Insensitive Environment at Nationally Renowned School, Montgomery Advertiser (June 19,

2020), https://tinyurl.com/y2s33axq.

6 Makenzie Keene, Bullies Behind Bars: How Changes to

Statewide Cyberbullying Policy May Do More Harm Than Good,

51 Tex. Tech L. Rev. 333, 346 (2019); see also Cyberbullying Research Center, Bullying Laws Across America, https://tinyurl.com/ybjo82ad. “Cyberbullying” is “the electronic posting of

mean-spirited messages about a person (such as a student)[.]”

Cyberbullying, Merriam-Webster Online Dictionary (2020),

https://tinyurl.com/vkndzyc.

10

schools to promptly investigate complaints, furnish

support for victims, and provide consequences for the

students who bully. N.J.S.A. § 18A:37-15. In particular, the school’s policy must “include provisions for appropriate responses to harassment, intimidation, or

bullying … that occurs off school grounds.” Id.

§ 18A:37-15.3; see also id. § 18A:37-14 (defining bullying to include behavior “that takes place … off school

grounds”). Under state law, a school administrator

who fails to address bullying when made aware of it,

including when the activity occurs off campus, may be

subject to sanctions. Id. § 18A:37-16. In Delaware,

schools must adopt policies to address cyberbullying

and students may not defend themselves from disciplinary action by claiming that the speech occurred

off campus or outside of school hours, provided there

was a “sufficient school nexus.” 14 Del. Code

§ 4164(b), (f)(1). As noted above, Pennsylvania has enacted cyberbullying legislation as well.

After the Third Circuit’s decision, schools in these

jurisdictions must now try to walk a fine line. If they

elect not to discipline a student for harmful behavior,

they risk running afoul of state cyberbullying laws. If

they instead decide to discipline the student, that student can claim a First Amendment violation, sue, and

potentially subject the school and its officials to protracted litigation. This Court’s review is essential to

draw a clearer line for schools, and to ensure that

school officials continue to have the authority to

properly address disruptive off-campus student

speech, thereby safeguarding children’s learning environments and complying with applicable state law.

11

B. The Third Circuit’s categorical rule

overlooks the distinction between core

academic programs and extracurricular

activities, frustrating school officials’

ability to impose context-appropriate

discipline.

The Third Circuit’s categorical distinction between on-campus and off-campus speech also does not

take into account the type of school activity involved—here, extracurricular sports—or the nature

of the discipline imposed, here, losing an extracurricular privilege rather than access to academic programming. As several circuits have recognized, these

contextual factors affect the relationship between student and school far more than the happenstance of the

geographic location of the student’s speech that is at

issue. School officials must have proper leeway to discipline students in the context of extracurricular activities, and should have greater freedom to withdraw

discretionary privileges than to limit core access to

the classroom. The Third Circuit’s decision casts aside

these sensible distinctions, creating even more confusion about whether and when school officials can impose context-appropriate discipline.

Extracurricular activities occupy a crucial role in

the mission of public schools. Through them, schools

build character and camaraderie, and provide opportunities for students to learn teamwork, leadership,

sportsmanship, and perseverance—a broader and

more diffuse set of values than those directly implicated by classroom learning. To instill these values,

teachers and coaches must be able to suitably discipline students who undermine rules and

12

expectations. How effective is a coach who cannot discipline the team captain for demeaning the teammates she is supposed to lead? What lessons will

students learn if the president of Model U.N. hurls

racist insults at other student ambassadors without

consequence? Amici and their members can attest,

based on their real-world experience, that the location

of these infractions outside the schoolhouse gate often

makes no difference regarding the extent of disruption and injury they can cause on campus.

By choosing to participate in extracurriculars,

students agree to abide by specified standards of conduct, including speech, as a condition of taking part

in these enriching activities. As this Court has explained, when students “choos[e] to ‘go out for the

team,’ they voluntarily subject themselves to a degree

of regulation even higher than that imposed on students generally…. Somewhat like adults who choose

to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics

have reason to expect intrusions upon normal rights

and privileges.” Vernonia Sch. Dist. 47J v. Acton, 515

U.S. 646, 657 (1995); see also Lowery v. Euverard, 497

F.3d 584, 597 (6th Cir. 2007) (“It is well-established

that … student athletes are subject to more restrictions than the student body at large.”). The same

can be said for student participants in other extracurricular activities. E.g., Doninger v. Niehoff, 527 F.3d

41, 46, 53 (2d Cir. 2008) (imposing specific standards

of conduct on participants in extracurricular student

government).

When students fail to live up to these standards,

schools must be able to impose appropriate discipline

13

in order to help inculcate the unique values that extracurricular activities are designed to teach. Where

exactly the speech occurred—especially if it originated online—is far less relevant than the message it

sends to the rest of the student participants and the

broader school community.

There is no shortage of examples underscoring

these basic propositions. In Doninger, the Junior

Class Secretary of a public high school wrote an online

blog from home, crudely criticizing school administrators and urging readers to lodge complaints “to piss

[them] off.” 527 F.3d at 43, 46. The school disqualified

the student from running for Senior Class Secretary

because she “failed to display the civility and good citizenship expected of class officers.” Id. at 46. The Second Circuit upheld this discipline, emphasizing that

the student’s behavior “undermin[ed] … the values

that student government, as an extracurricular activity, is designed to promote.” Id. at 52.

Likewise, in Lowery, several high school football

players were removed from the team after expressing

hatred for their coach in a petition to have him fired.

497 F.3d at 596. In upholding the school’s actions, the

Sixth Circuit highlighted “the differing natures of the

classroom and playing field.” Id. at 589. In the classroom, students are encouraged to “express and evaluate competing viewpoints,” but on the field,

“[e]xecution of the coach’s will is paramount.” Id.

(quoting Dambrot v. Central Mich. Univ., 55 F.3d

1177, 1190 (6th Cir. 1995)). “Requiring coaches to tolerate attacks on their authority would effectively

strip them of their ability to lead. It would also do a

great disservice to other players who wish to play on

14

a team free from strife and disunity[.]” Id. at 599; see

also Wildman v. Marshalltown, 249 F.3d 768, 771

(8th Cir. 2001) (high school basketball coach could

punish insubordination because of school’s “interest

in affording [all] teammates an educational environment conducive to learning team unity and sportsmanship and free from disruptions and distractions

that could hurt or stray the cohesiveness of the

team”).

The Third Circuit’s decision overlooks the distinction between the extracurricular and more purely academic contexts. Extracurricular teachers and

coaches should be able to regulate student speech that

is antithetical to the values they are charged with instilling. The Third Circuit’s rule casts doubt on their

authority to do so, forcing schools and school personnel to risk lawsuits and money judgments if they step

over the court’s arbitrary line. If it stands, the decision below threatens to undermine the very purpose

of extracurricular activities: to teach students character, teamwork, sportsmanship, and leadership—not

just on but also off the field, the debate floor, and the

school’s delimited grounds.

The decision below also fails to account for the nature and extent of the discipline imposed. It ignores

the difference between penalties that touch on a student’s core educational right—like academic suspension or expulsion—and discipline that merely

withdraws a privilege, like separation, perhaps only

temporary, from a sports team. The Third Circuit’s

one-size-fits-all rule contrasts with the approach this

Court adopted in Tinker, which considers whether the

school’s discipline is a “reasonable regulation of

15

speech-connected activities” under the particular “circumstances.” 393 U.S. at 513; see also id. 507-08 (indicating that broad regulation of “pure speech,” like

forbidding all student discussion of controversial political issues, requires stronger justification than

more modest regulations, like limiting certain types

of student clothing).

Several circuits have recognized what amici and

their members know to be true: It makes good sense

in this context to weigh a student’s speech interests

against the nature of the deprivation imposed. When

the Junior Class Secretary failed to show the “good

citizenship” expected of student leaders in Doninger,

527 F.3d at 45, the Second Circuit found it “of no small

significance that the discipline” chosen—disqualification from running for Senior Class Secretary—“related to [her] extracurricular role as a student

government leader,” id. at 52. The court properly appreciated that “participation in voluntary, extracurricular activities is a ‘privilege’ that can be rescinded

when students fail to comply with the obligations inherent in the activities themselves.” Id.

The Sixth Circuit similarly emphasized the nature of the discipline imposed in Lowery. While the

football players were removed from the team for defying the coach’s authority, their “ability to attend

class” was not implicated. 497 F.3d at 599. Indeed, the

players were “free to continue their campaign to have

[the coach] fired,” even though they could not “continue to play football for him while actively working

to undermine his authority.” Id. at 600 (emphasis

omitted). The Eighth Circuit likewise recognized the

importance of the deprivation in Wildman. 249 F.3d

16

at 772. There, the school conditioned a basketball

player’s continued membership on the team on her

apologizing to her teammates for circulating a disrespectful letter. The modest condition was central to

the court’s reasoning: “the school sanction only required an apology. The school did not interfere with

Wildman’s regular education. A difference exists between being in the classroom, which was not affected

here, and playing on an athletic team when the requirement is that the player only apologize.” Id.

As these cases illustrate, when a school’s penalty

does not touch on a student’s core educational right,

school officials should have more flexibility in addressing student speech. Schools and coaches should

not fear lawsuits and monetary liability every time

they instruct a player to apologize to her teammates

for harmful speech without first calculating the precise location of the offending statement. Cf. Morse v.

Frederick, 551 U.S. 393, 427 (2007) (Breyer, J., concurring in part) (“Teachers are neither lawyers nor

police officers; and the law should not demand that

they fully understand the intricacies of our First

Amendment jurisprudence.”); id. at 409-10 (“School

[administrators] have a difficult job,” in which they

often “ha[ve] to decide to act—or not act—on the

spot.”). “[N]othing in the First Amendment requires

[school officials] to check their common sense at the

school house door.” Layshock ex rel. Layshock v.

17

Hermitage Sch. Dist., 650 F.3d 205, 222 (3d Cir. 2011)

(Jordan, J., concurring).7

As the case law adhering to Tinker emphasizes,

“[t]he contour[s] of First Amendment protection given

to speech depends upon the context.” Lowery, 497

F.3d at 587. Other circuits have rightly been “reluctant to try and craft a one-size fits all approach” to the

issues of student speech. Wynar v. Douglas Cnty. Sch.

Dist., 728 F.3d 1062, 1069 (9th Cir. 2013). In attempting to bring “up-front clarity to students and school

officials,” Pet. App. 33a, by imposing a blanket rule

for all contexts in which off-campus student speech

might be implicated, the Third Circuit has created

even more confusion by blurring the longstanding and

practical distinctions between extracurricular privileges and core academic activity.

C. The line between on- and off-campus

speech is arbitrary and anachronistic in

the social media age, when students can

disrupt the school community from

anywhere with the touch of a button.

Social media has fundamentally changed the way

that students experience the world and communicate

7 The harm extends beyond extracurriculars. By failing to

give any consideration to a school’s degree or “mode of discipline,” Pet. App. 20a, the Third Circuit did not clarify whether

school officials can consider off-campus speech when conferring

other privileges, such as college recommendation letters or admission to the National Honor Society. See Nat’l Honor Soc’y,

How to Become a Member, https://tinyurl.com/y5b4fdje (last visited Oct. 1, 2020) (membership is based on four pillars: scholarship, service, leadership, and character).

18

with their peers both on and off campus. In 2018, 97%

of thirteen- to seventeen-year-olds used at least one

social media platform.8 Ninety-five percent of them

had access to a smartphone, and almost half of them

reported being online “almost constantly.” Id. The

numbers have only increased since then—and at an

even faster clip since COVID-19 substantially curtailed in-person gatherings.9

Most circuits have acknowledged that the omnipresent nature of social media renders the physical

boundary demarcating the schoolhouse gates in many

respects obsolete. “Students now have the ability to

disseminate instantaneously and communicate

widely from any location via the Internet. These communications, which may reference events occurring,

or to occur, at school, or be about members of the

school community, can likewise be accessed anywhere,

by anyone, at any time.” Bell v. Itawamba Cnty. Sch.

Bd., 799 F.3d 379, 392 (5th Cir. 2015) (en banc) (emphases added). This reality makes “any effort to trace

First Amendment boundaries along the physical

boundaries of a school campus a recipe for serious

problems in our public schools.” Doe v. Valencia Coll.,

903 F.3d 1220, 1231 (11th Cir. 2018) (quoting Bell,

799 F.3d at 395-96); see also Kowalski v. Berkeley

8 Monica Anderson & JingJing Jiang, Teens, Social Media

& Technology 2018, Pew Research Center (May 31, 2018),

https://tinyurl.com/uzcepg3.

9 Peter Suciu, Screen Time and Social Media Use Among

Teens Continues to Rise, Forbes (May 21, 2020), https://tinyurl.com/yxo4xr3e.

19

Cnty. Schs., 652 F.3d 565, 573 (4th Cir. 2011); Doninger, 527 F.3d at 48-49.

Rather than heeding the consensus among its sister circuits, the Third Circuit instead followed “[t]he

consensus in the analog era,” drawing an artificial

line between speech that originates on campus and

speech that does not. Pet. App. 32a. This approach is

unworkable in today’s public schools. It ignores the

realities of social media, which can be deployed anywhere, and which can perpetuate harmful student

speech, regardless of where it is first expressed. It also

disregards the intent of the speaker, who, whether

posting content on or off campus, may take aim at

other students or school officials with the goal of disrupting the school community.

Social media amplify the effects of harmful student speech. Again, examples abound. In Kowalski, a

student, while off campus, created a social media

group to ridicule her classmate and invited 100 of her

online “friends” to join. 652 F.3d at 567. Within hours,

a classmate asked Kowalski to deactivate the group

after the victim’s father discovered it. Id. at 568. But

Kowalski was unable to shut it down. In a short time,

more than two dozen of her classmates had joined the

group, contributing their own harmful comments and

photographs. Id. at 567-68. The widespread disruption and damage of her speech was irreversible.

Similarly, in S.J.W. ex rel. Wilson v. Lee’s Summit

R-7 School District, two students created a blog where

they posted racist and sexually degrading comments

about their high school peers. 696 F.3d 771, 773 (8th

Cir. 2012). The students used a foreign domain name

20

so that the blog could not be found through a Google

search, and they told only five or six friends about it.

Id. But before long, the entire student body knew

about the blog, and local media arrived on campus to

cover the story. Id. at 774. Speech can spread “like

wildfire” on social media, Layshock, 650 F.3d at 208;

a single online statement can create much broader

and more lasting harm to the school community than

the same comment expressed in-person inside the

school. See, e.g., R.L. ex rel. Lordan v. Cent. York Sch.

Dist., 183 F. Supp. 3d 625, 639 (M.D. Pa. 2016) (noting

that a social media post made off campus was “even

more disruptive to [the] school” than a written bomb

threat found on-campus).

The Third Circuit’s ruling not only ignores these

realities of social media, but it also disregards that

student speakers can cause adverse effects just as

easily from outside the school as from inside. Students, while off campus, can disrupt the school community through social media posts that target other

students and school officials. If the off-campus location of the speech is enough to defeat any form of discipline by school officials, the implications are

significant and concerning. “With the tools of modern

technology, a student could, with malice aforethought, engineer egregiously disruptive events and,

if the trouble-maker were savvy enough to tweet the

organizing communications from his or her cellphone

while standing one foot outside school property, the

school administrators might succeed in heading off

the actual disruption in the building, but would be left

powerless to discipline the student.” Layshock, 650

F.3d at 221 (Jordan, J., concurring).

21

Examples permeate the everyday experiences of

amici and their members. Consider the elementary

school student who logged into several other students’

social media accounts after acquiring their login and

password information, and then posed as those students while sending harassing messages to their

teacher. The student intended to bully the other students by turning the teacher against them. Even

though the speech was aimed directly at the teacher

and attempted to undermine other students’ reputations, the school, if located in the Third Circuit, might

not be able to address the incident simply because the

messages originated off campus. If teachers cannot

appropriately discipline elementary schoolers for engaging in such intentionally disruptive speech—perhaps their first acts of cyberbullying—how can we

expect them to “inculcate the habits and manners of

civility”? Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.

675, 681 (1986).

More egregious examples occur every day in high

schools across the country. Currently, school officials

in Michigan are facing a lawsuit after imposing a 10day suspension on a student for intentionally targeting a biology teacher through social media. The student, while off campus, created an Instagram account

under a username that corresponded to the name of

his teacher. He then posted a photograph featuring a

dangerously placed hypodermic needle, with a caption

reading: “Watch out guys, I am concerned for everyone’s safety.” Complaint at 5, Kutchinski v. Freeland

Comm’y Sch. Dist., No. 19-13810 (E.D. Mich. filed

Dec. 30, 2019). The student shared the password with

his friends, who added their own inappropriate posts

targeting the teacher. In response to the student’s

22

suspension, his father filed a lawsuit against the

school district, superintendent, and principal, emphasizing that the “speech occurred completely off-campus.” Id. at 19.10

“It goes without saying that a teacher … is the

cornerstone of education. Without teaching, there can

be little, if any, learning. Without learning, there can

be little, if any, education.” Bell, 799 F.3d at 399. And

“threatening, harassing, and intimidating a teacher

impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability … to educate.” Id. at

399-400. If school officials cannot address verbal attacks on teachers simply because they were initiated

off campus—no matter the detrimental effect of the

speech on the learning environment—schools will be

undercut in their ability to fulfill their most basic

functions. Put simply, if the Third Circuit’s opinion is

left uncorrected, it threatens to “disrupt[], if not destroy[], the very mission for which schools exist—to

educate.” Id. at 400.

10 It is unclear whether the speech in some of these examples would qualify as unprotected fraud, defamation, or invasion

of privacy. See generally United States v. Alvarez, 567 U.S. 709,

719 (2012) (plurality opinion) (false statements are not perforce

unprotected); id. at 730-36 (Breyer, J., concurring in the judgment) (applying intermediate scrutiny to a regulation of false

statements, and distinguishing it from prohibitions on fraud,

defamation, and invasion of privacy). In the Third Circuit, however, the origination of the speech off campus might well be dispositive.

23

D. This Court’s guidance is especially

needed as schools shift to remote

learning in the wake of the COVID-19

pandemic.

The misguided nature of the Third Circuit’s analysis is brought into even sharper relief now that many

schools have responded to the COVID-19 pandemic by

moving classroom activity online. “With the onset of

the global pandemic caused by COVID-19, nearly all

K-12 students in the United States have experienced

an unprecedented interruption in their formal schooling.”11 Many schools are “transitioning to online

learning,” id., using new communication platforms,

including social media, to teach remotely.12

These platforms allow teachers to preserve a semblance of the traditional classroom experience, but

they also provide new opportunities for disruptive

student speech, away from campus. One student, for

instance, reported being attacked in a “Google Chat”

session with her class, during which a classmate

“compared her to a fat ape’s picture and commented

on her hair, saying it looked ‘ghetto.’”13 More generally, students may be harassed during video

11 Brian Fitzpatrick, et al., Virtual Charter Schools and

Online Learning During COVID-19, Brookings (June 2, 2020),

https://tinyurl.com/y3gk2msd.

12 See, e.g., Bill Pearson, Edgecomb Educators Use Social

Media in Distance Learning, Boothbay Register (Apr. 14, 2020),

https://tinyurl.com/y69rd4kp.

13 Christopher B. Dolan, There Are Ways to Deal With Cyberbullying in School, S.F. Examiner (Aug. 20, 2020), https://tinyurl.com/y4uurfak.

24

conferencing, “by logging into the Zoom room before

the teacher arrives and being harassed by classmates,

or by having classmates take photos or screenshots of

their face during a Zoom meeting and use it in a

harmful way.”14

Bullying is a critical issue; by some counts, it affects more than 20% of students between the ages of

12 to 18.15 Of those students, 22% reported being bullied outside of school, and 15% reported being bullied

online or by text. Id. Cyberbullying in particular, including cyberbullying that originates off campus, is

only likely to increase as students spend more time

learning and interacting online.16

But under the Third Circuit’s bright-line rule, it

is unclear that teachers can discipline students who

disrupt the online classroom. The ongoing shift from

the conventional in-person classroom to remote

14 Torrey Trust, The 3 Biggest Remote Teaching Concerns

We Need to Solve Now, EdSurge (Apr. 2, 2020), https://tinyurl.com/y6azcjof; see also Beatriz Oliveros, Remote Learning

and the Potential for Cyberbulling: What Houston Parents

Should Know, KPRC2 (Aug. 28, 2020), https://tinyurl.com/yyueul8x (“Kids have been seen to actively, and in

real time, group bully another student on a zoom chat or sending

horrible private messages to each other.”).

15 Inst. of Educ. Scis., Indicator 10: Bullying at School and

Electronic Bullying, National Center for Education Statistics

(Apr. 2019), https://tinyurl.com/y5lr3xuf.

16 See Sarah Darmanjian, Organizations Say Rise in Cyberbullying Likely During COVID-19 Isolation, News10 (Apr. 8,

2020), https://tinyurl.com/y2gwb2x9; Kendall Morris, Experts

Say Virtual Learning Could Lead to an Increase in Cyberbullying, WCNC (July 19, 2020), https://tinyurl.com/y4wen9ou.

25

learning has substantially obscured any clear line

that may once have existed between on-campus and

off-campus student speech and serves only to underscore the unworkability of the Third Circuit’s approach.

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Francisco M. Negrón, Jr.

Chief Legal Officer

Sonja H. Trainor

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street, FL 2

Alexandria, VA 22314

October 1, 2020

Kelsi Brown Corkran

Counsel of Record

Thomas M. Bondy

Monica Haymond

Sachi Schuricht

Orrick, Herrington &

Sutcliffe LLP

1152 15th Street, N.W.

Washington, D.C. 20005

(202) 339-8400

kcorkran@orrick.com