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 Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

BRIEF OF ALLIANCE DEFENDING FREEDOM

AND CHRISTIAN LEGAL SOCIETY AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

KENNETH W. STARR

5404 Pointwood Circle

Waco, TX 76710

Kenneth.w.starr@

gmail.com

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

TYSON C. LANGHOFER

MATHEW W. HOFFMANN

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

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

BACKGROUND ......................................................... 3

SUMMARY OF THE ARGUMENT ........................... 7

ARGUMENT .............................................................. 9

I.

By its own reasoning, Tinker does not apply

to off-campus student speech. ............................. 9

A. Minors have significant First Amendment rights that Tinker modified only

because schools have custodial and

tutelary roles. .............................................. 10

1. The extraterritorial extension of

schools’ custodial role abridges the

fundamental rights of minors and

of their parents. .................................... 12

2. Schools’ tutelary interest does not

extend off-campus either. ..................... 15

B. Applying Tinker off-campus would

constitutionalize the heckler’s veto and

an effects-based test for speech that the

First Amendment abhors. ........................... 17

ii

II. The

time-tested,

categorical

First

Amendment approach allows government

actors sufficient latitude to regulate

problematic student speech. .............................. 22

A. State actors can respond to true offcampus threats. ........................................... 23

B. State actors and victims can and have

successfully regulated tortious speech. ...... 24

C. State actors can also successfully

regulate true student harassment. But

this Court should make clear what is—

and is not—harassment in the context

of our cancel culture. ................................... 26

CONCLUSION ......................................................... 34

iii

TABLE OF AUTHORITIES

Cases

Andrews v. State,

930 A.2d 846 (Del. 2007)...................................... 24

B.B. v. State,

141 N.E.3d 856 (Ind. Ct. App. 2020) ................... 24

Barnett ex rel. Barnett v. Tipton County Board of

Education,

601 F. Supp. 2d 980 (W.D. Tenn. 2009) .............. 25

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986) .................................. 11, 15, 16

Board of Education of the Westside Community

Schools v. Mergens,

496 U.S. 226 (1990) ................................................ 1

Brown v. Entertainment Merchants Association,

564 U.S. 786 (2011) ....................................... passim

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) .............................................. 21

Commonwealth v. Milo M.,

740 N.E.2d 967 (Mass. 2001) ............................... 24

Dariano v. Morgan Hill Unified School District,

767 F.3d 764 (9th Cir. 2014) ................................ 29

Davis ex rel. LaShonda D. v. Monroe County

Board of Education,

526 U.S. 629 (1999) ....................................... passim

Doe v. Pulaski County Special School District,

306 F.3d 616 (8th Cir. 2002) ................................ 23

iv

Employment Division v. Smith,

494 U.S. 872 (1990) .............................................. 14

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) .................................. 10, 11, 16

Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020) .......................................... 14

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) .............................................. 15

Feminist Majority Foundation v. Hurley,

911 F.3d 674 (4th Cir. 2018) .......................... 23, 30

Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) .............................................. 18

Galloway v. State,

781 A.2d 851 (Md. 2001) ...................................... 27

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) .............................................. 24

Ginsberg v. New York,

390 U.S. 629 (1968) .............................................. 15

Haughwout v. Tordenti,

211 A.3d 1 (Conn. 2019)....................................... 23

Hobbs v. Germany,

49 So. 515 (Miss. 1909) ........................................ 12

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston,

515 U.S. 557 (1995) .............................................. 20

Huxen v. Villasenor,

798 So. 2d 209 (La. Ct. App. 2001) ...................... 25

In re A.S.,

626 N.W.2d 712 (Wis. 2001) ................................ 24

v

In re Alex C.,

13 A.3d 347 (N.H. 2010) ...................................... 27

In re B.R.,

732 A.2d 633 (Pa. 1999) ....................................... 27

In re Ernesto H.,

24 Cal. Rptr. 3d 561 (Cal. Ct. App. 2004) ........... 24

In re Interest of Jeffrey K.,

728 N.W.2d 606 (Neb. 2007) ................................ 27

In re J.M.,

249 Cal. Rptr. 3d 83 (Cal. Ct. App. 2019) ........... 23

In re J.U.,

384 P.3d 839 (Ariz. Ct. App. 2016) ...................... 24

In re Junior B.,

78 Cal. Rptr. 436 (Cal. Ct. App. 1969) ................ 27

In re P.T.,

995 N.E.2d 279 (Ohio Ct. App. 2013) .................. 27

In re Pedro H.,

764 N.Y.S.2d 274 (N.Y. App. Div. 2003) ............. 27

Interest of J.J.M.,

219 A.3d 174 (Pa. 2019) ....................................... 23

J.S. v. Bethlehem Area School District,

807 A.2d 847 (Pa. 2002) ....................................... 25

K.A. ex rel. Ayers v. Pocono Mountain School

District,

710 F.3d 99 (3d Cir. 2013) ................................... 10

Meyer v. Nebraska,

262 U.S. 390 (1923) .............................................. 13

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) ................................ 10

vi

Morse v. Frederick,

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

National Institute of Family & Life Advocates v.

Becerra,

138 S. Ct. 2361 (2018) ...................................... 1, 20

People v. Choi,

274 Cal. Rptr. 3d 6 (Cal. Ct. App. 2021) ............. 27

People v. Khan,

127 N.E.3d 592 (Ill. App. Ct. 2018) ..................... 23

Pierce v. Society of the Sisters of the Holy Names of

Jesus & Mary,

268 U.S. 510 (1925) .............................................. 13

Pratt v. Robinson,

349 N.E.2d 849 (N.Y. 1976) ................................. 12

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) .............................................. 18

Reed v. Town of Gilbert,

576 U.S. 155 (2015) .......................................... 1, 19

Reno v. ACLU,

521 U.S. 844 (1997) ........................................ 15, 19

Rowles v. Curators of the University of Missouri,

983 F.3d 345 (8th Cir. 2020) ................................ 30

Saxe v. State College Area School District,

240 F.3d 200 (3d Cir. 2001) ................................. 16

State ex rel. Clark v. Osborne,

24 Mo. App. 309 (1887) ........................................ 12

State in Interest of D.J.S.,

255 So. 3d 1177 (La. Ct. App. 2018) .................... 27

vii

State in Interest of G.J.G.,

297 So. 3d 120 (La. Ct. App. 2020) ...................... 25

State v. Asmussen,

668 N.W.2d 725 (S.D. 2003) ................................ 27

State v. Trey M.,

383 P.3d 474 (Wash. 2016) .................................. 24

T.B. v. State,

990 So.2d 651 (Fla. Dist. Ct. App. 2008) ............. 27

Thomas v. Board of Education,

607 F.2d 1043 (2d Cir. 1979) ............................... 12

Thompson v. Hebdon,

140 S. Ct. 348 (2019) .............................................. 1

Tinker v. Des Moines Independent Community

School District,

393 U.S. 503 (1969) ....................................... passim

Troxel v. Granville,

530 U.S. 57 (2000) ................................................ 13

United States v. C.S.,

968 F.3d 237 (3d Cir. 2020) ................................. 24

United States v. Stevens,

559 U.S. 460 (2010) ................................................ 7

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) .............................................. 1

Virginia v. Black,

538 U.S. 343 (2003) .............................................. 23

Wagner v. Miskin,

660 N.W.2d 593 (N.D. 2003) ................................ 25

viii

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943) .............................................. 10

Wisconsin v. Yoder,

406 U.S. 205 (1972) ........................................ 14, 16

Statutes

20 U.S.C. 4071–4074 .................................................. 1

Ark. Code Ann. § 6-18-514(b)(2)(A) ......................... 25

Cal. Educ. Code § 48900(r)(1)(D) ............................. 29

Fla. Stat. Ann. § 1006.147(2)(d) .............................. 29

Ind. Code Ann. § 20-33-8-0.2(a)(4)........................... 29

La. Stat. Ann. § 14:47 .............................................. 25

N.Y. Educ. Law § 11(7)(a) ........................................ 29

Tex. Educ. Code Ann. § 37.0832(a)(1)(A)(ii) ............ 29

Utah Code Ann. § 76-9-404 ...................................... 25

Va. Code Ann. § 18.2-417 ......................................... 25

ix

Other Authorities

Alexander G. Tuneski, Note, Online, Not on

Grounds: Protecting Student Internet Speech,

89 Va. L. Rev. 139 (2003) ..................................... 25

Congregation for Catholic Education, “Male and

Female He Created Them”: Towards a Path of

Dialogue on the Question of Gender Theory in

Education (2019) .................................................. 31

Genesis 1:27 ............................................................. 31

Madison Metropolitan School District, Guidance

& Policies to Support Transgender, Non-Binary

& Gender-Expansive Students (Apr. 2018) ......... 17

Memorandum on Religious Expression in Public

Schools, 2 Pub. Papers 1083 (July 12, 1995) ........ 2

Tracey Kaplan, Jury finds girls, parents liable for

calling teacher ‘perv’, THE MERCURY NEWS (Nov.

15, 2013), https://bayareane.ws/310ellV ............. 25

Regulations

Guidance on Constitutionally Protected Prayer

and Religious Expression in Public

Elementary and Secondary Schools, 85 Fed.

Reg. 3257 (Jan. 21, 2020) ...................................... 2

Guidance on Constitutionally Protected Prayer in

Public Elementary and Secondary Schools, 68

Fed. Reg. 9645 (Feb. 28, 2003) .............................. 2

1

INTEREST OF AMICI CURIAE 1

Alliance Defending Freedom (ADF) is a not-forprofit, public-interest legal organization that protects

speech, religious liberty, and the right to life. ADF

regularly defends students, adults, and organizations

in cases involving the right to free speech. E.g.,

Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021);

Thompson v. Hebdon, 140 S. Ct. 348 (2019) (per

curiam); Nat’l Inst. of Fam. & Life Advocs. v. Becerra

(NIFLA), 138 S. Ct. 2361 (2018); Reed v. Town of

Gilbert, 576 U.S. 155 (2015).

Christian Legal Society (CLS) is an association of

attorneys, law students, and law professors with

chapters meeting in 30 states and at approximately

115 law schools. For 45 years, CLS’s Center for Law

and Religious Freedom has worked to protect

students’ religious expression from discriminatory

treatment by public school officials. The Center

advised on the drafting of the Equal Access Act, 20

U.S.C. 4071–74, in which Congress protected public

secondary students’ right to meet for “religious,

political, philosophical, or other” speech at their

schools. Bd. of Educ. of the Westside Cmty. Schs. v.

Mergens, 496 U.S. 226, 239 (1990) (“[T]he Act, which

was passed by wide, bipartisan majorities in both the

House and the Senate . . . was intended to address

perceived

widespread

discrimination

against

religious speech in public schools.”).

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Pursuant to Supreme Court Rule 37.3,

all parties consented to this brief’s filing.

2

In 1993, CLS joined a diverse coalition of

organizations in drafting Religion in the Public

Schools: A Joint Statement of Current Law, which

became the basis for the Clinton Administration’s

Department of Education Religious Expression in

Public Schools, guidance issued to the Nation’s school

administrators in 1995, 1998, and 1999. Memorandum on Religious Expression in Public Schools, 2 Pub.

Papers 1083 (July 12, 1995). The Clinton Administration guidance became the framework for the Bush

Administration’s Department of Education Guidance

on Constitutionally Protected Prayer in Public

Elementary and Secondary Schools, 68 Fed. Reg. 9645

(Feb. 28, 2003), and the Trump Administration’s

Department of Education Guidance on Constitutionally Protected Prayer and Religious Expression in

Public Elementary and Secondary Schools, 85 Fed.

Reg. 3257 (Jan. 21, 2020). For 35 years, the bipartisan

consensus has been that students’ religious speech

needs protection in the public-school context.

ADF and CLS rely on the Free Speech Clause to

protect individuals and organizations whose speech is

restricted by laws and errant government officials.

ADF and CLS have a strong interest in ensuring that

laws and regulations discriminating based on content

and viewpoint undergo the strictest scrutiny.

3

BACKGROUND

ADF and CLS know firsthand the perils of schools

regulating off-campus speech. Religious speech, in

particular, provokes debate and inflames passions.

But that is precisely why it deserves equal First

Amendment protection. It expresses the deeply held

beliefs of the speaker and contributes to our

marketplace of ideas. As the training ground for our

young citizens, schools should be even more ready to

entertain dialogue for the betterment of all. Yet today,

schools are all too quick to clamp down on speech that

might cause subjective offense—regardless of where

that speech occurs.

Take Jack Denton.2 A devout Catholic, Jack was

heavily involved in religious groups and student

government at Florida State University. See Am.

Compl., Denton v. Thrasher, No. 4:20-cv-00425-AWMAF (N.D. Fla. Feb. 11, 2021), ECF No. 69. The

student body elected Jack to the student senate. And

after seeing Jack’s collegial work ethic, his fellow

senators elected him president of the senate. During

the summer after his election as president, Jack sent

messages in a private group chat for members of the

Catholic Student Union. In response to another

student sharing a video raising money for various

2 ADF and CLS represent both university and k-12 students. The

following examples of ADF clients focus on university campuses,

but concerns regarding regulation of off-campus speech apply

just as equally to claims by B.L. and students like her. These

examples also show the problems of applying Tinker v. Des

Moines Independent Community School District, 393 U.S. 503

(1969), to the university environment generally. See Davis ex rel.

LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 667

(1999) (Kennedy, J., dissenting).

4

organizations, Jack expressed that some of those

groups advocate for causes that contravene the

Catholic Church’s beliefs, such as “queer-affirming

networks,” transgenderism, and abortion. Jack told

his fellow students that he knew he was speaking on

an “emotional topic” and did not want to anger

anyone. But out of love for them and the Church, he

knew he could not stay silent about unknowing

support for organizations acting contrary to shared

religious beliefs.

Another student took a screenshot of the private

messages and shared them publicly on various social

media platforms. As a result, a fellow senator made a

motion of no confidence against Jack. The initial

motion failed but triggered a massive public campaign. A petition calling for his removal garnered over

6,000 signatures in less than two days. In response,

Jack convened a special session of the senate to

entertain a second no-confidence motion. Fellow

senators called Jack’s well-intended remarks

“abhorrent,” “demeaning,” and “disgraceful.” Other

senators said they needed to remove Jack to “do right

by the LGBTQ+ community” and not “enabl[e]

bigotry.” The second no-confidence vote passed,

removing Jack from office based solely on his

thoughtful religious speech.

Jack’s initial appeals to the university’s vice

president for student affairs and the student supreme

court fell on deaf ears. The student affairs official

informed the senate that she believed it followed

appropriate procedure. For its part, the student

senate initially prevented the supreme court from

reaching a quorum. Their actions and inaction forced

Jack to file a lawsuit to vindicate his first freedoms.

5

Or consider Owen Stevens. Owen, a history major

in the school of education at the State University of

New York-Geneseo, has a 3.6 GPA and is a member

of the history honors society. He is also a Christian,

whose faith teaches him that all people are created in

the image of God with inherent dignity and value.

When he shares his religious beliefs, he strives never

to denigrate other people, even if he disagrees with

their views.

But his university sought to regulate Owen’s offcampus speech regardless of its importance. Owen

posted four videos on his private social media

accounts, on his own time, while off campus. The posts

discussed his religious and political views. In one of

them, he asserts that, as a biological matter, “a man

is a man” and “a woman is a woman,” and a man

cannot become a woman and a woman cannot become

a man. In another post, Owen criticized identitybased extracurricular groups for dividing people,

rather than uniting them. Owen made no mention of

his university.

After learning of the videos, the education department’s interim director summoned Owen into his

(virtual) office to convince him that his views were

unacceptable. Owen was happy to discuss his beliefs

and listen to others’, but he was unpersuaded. The

director then accused Owen of being unwilling to treat

all people with respect. Based solely on the four

videos, the university banned Owen from student

teaching and field work—areas necessary for him to

complete his degree—and required his future private

social media posts to show respect for diverse

personal and cultural values. After Owen appealed

the punishment, the Provost removed the suspension

6

but continued to impose other sanctions, including a

requirement to self-monitor his social media posts.

Owen is currently considering his next steps.

Jack’s and Owen’s cases show the risks inherent

in a test for speech that looks to the effect speech has.

Both Jack and Owen shared messages off campus

based on their deeply held religious convictions. Jack

spoke from a genuine desire to share the Catholic

Church’s teachings. Owen, too, shared his beliefs on

matters of public import. Nonetheless, because some

on campus disagreed with the content and viewpoint

of their speech, both students were the target of statesponsored sanctions. In places that are supposed to

serve as marketplaces of ideas, hecklers drowned out

their speech on matters of religious and social

concern. The First Amendment does not allow public

school officials to reach far beyond the schoolhouse

gate and censor speech with which they disagree,

wherever it may occur.

7

SUMMARY OF THE ARGUMENT

ADF and CLS agree with Respondents that

confining Tinker v. Des Moines Independent

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

campus gives appropriate respect to speech and

parental rights while allowing schools sufficient

leeway to regulate harmful behavior.

As Jack’s and Owen’s cases show, religious

students both on and off campus often find

themselves persecuted because of their speech. This

is contrary to the First Amendment, which “reflects a

judgment by the American people that the benefits of

its restrictions on the Government outweigh the

costs.” United States v. Stevens, 559 U.S. 460, 470

(2010). This Court should make clear that schools

cannot regulate speech based on the effects that

speech has on its listeners.

That this case involves a minor’s speech

highlights the need to prevent schools from invading

parents’ proper sphere. This Court has repeatedly

affirmed that minors have significant First Amendment rights, particularly outside the schoolhouse

gate. Tinker, 393 U.S. at 506. And that makes sense,

because the reasons Tinker gave for limiting speech

on campus—a school’s custodial and tutelary

interests—do not apply off campus. Once school ends,

the child’s parents resume full custodial and

educational control, pursuant to their fundamental

right to raise their children as they see fit.

8

Applying Tinker off campus circumscribes

parental rights and creates an unconstitutional

effects-based test for non-school speech. When schools

regulate speech according to whether it causes a

substantial disruption, they necessarily do so based

on the effect speech has on its listeners. Such a

heckler’s veto licenses content and viewpoint discrimination abhorrent to the First Amendment. And

it poses a grave risk to those whose religious faith

compels them to speak potentially unpopular ideas.

The First Amendment has already struck the

proper balance. Because Tinker does not apply off

campus, and minors generally have full speech rights,

schools and other state actors must meet the timetested categorical First Amendment approach to

regulating off-campus speech. That approach gives

officials sufficient leeway to address problematic

speech; under this Court’s carefully calibrated

standards governing true threats, tortious speech,

and harassment, state actors can regulate off-campus

speech within reasonable limits.

What’s more, all states already have relevant

laws on the books that have been effective at reaching

truly problematic speech. The rule the Third Circuit

applied here properly upholds the First Amendment

without tying the hands of state actors. This Court

should

affirm—while

reinforcing

the

First

Amendment’s equal protection for religious speech.

9

ARGUMENT

I.

By its own reasoning, Tinker does not apply

to off-campus student speech.

This Court’s precedents make clear that minors

have significant First Amendment rights. Only in

narrow and well-defined circumstances may government restrict those freedoms. Tinker provided one

such restriction to deal with the uniquely important

educational environment, one where schools take a

parens patriae custodial and tutelary responsibility

over students and must address situations where

rights clash.

But, by definition, schools’ twin responsibilities of

custody and tutelage do not apply to off-campus

speech. Moreover, by restricting speech outside of

class, after custodial and tutelary responsibilities

end, schools violate the First Amendment and

interfere with parents’ fundamental right to rear

their children.

Effects-based tests give schools carte blanche to

restrict the content and viewpoint of speech, two

areas sacred to our First Amendment. Making clear

that Tinker does not apply off campus will provide

consistency with this Court’s precedents and prevent

the cheapening of speech and parental rights.

10

A. Minors have significant First Amendment rights that Tinker modified only

because schools have custodial and

tutelary roles.

For decades, this Court has held that “minors are

entitled to a significant measure of First Amendment

protection.” Erznoznik v. City of Jacksonville, 422

U.S. 205, 212 (1975); accord, e.g., W.Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943) (striking

down a state statute that required school students to

salute the flag and recite the pledge of allegiance

because that action “invade[d] the sphere of intellect

and spirit which it is the purpose of the First

Amendment to our Constitution to reserve from all

official control.”). It is “only in relatively narrow and

well-defined circumstances” that governments may

impinge on those rights. Brown v. Ent. Merchs. Ass’n,

564 U.S. 786, 794 (2011); accord id. at 795 n.3 (no

authority supports the contention that minors lack

free-speech protections). For example, the state has a

legitimate interest in protecting children from harm,

but it cannot suppress otherwise constitutionally

protected speech “solely to protect the young from

ideas or images that a legislative body thinks

unsuitable for them.” Id. at 795.

Tinker itself teaches that students do not “shed”

their free speech protections “at the schoolhouse

gate.” 393 U.S. at 506; accord K.A. ex rel. Ayers v.

Pocono Mountain Sch. Dist., 710 F.3d 99, 110–11 (3d

Cir. 2013) (recognizing speech protections for

elementary school students); Morgan v. Swanson, 659

F.3d 359, 407–09 (5th Cir. 2011) (en banc) (same). The

logical antecedent is that students, of course, have

significant free speech rights outside that gate.

11

Indeed, students “out of school are ‘persons’ under

our Constitution.” Tinker, 393 U.S. at 511. Thus, this

Court has struck down overbroad laws micromanaging what movies can be shown at drive-in

movie theaters, Erznoznik, 422 U.S. at 217–18, and

what video games minors can purchase, Brown, 564

U.S. at 795. And the Court has affirmed that the

government does not have “free-floating power to

restrict the ideas to which children may be exposed.”

Id. at 794.

The school environment’s unique context is one of

the few “precisely delineated areas,” where a state has

somewhat greater authority to regulate a minor’s

speech. Erznoznik, 422 U.S. at 214 n.11. The justifications for speech restrictions come from the “schools’

custodial and tutelary responsibility for children.”

Morse v. Frederick, 551 U.S. 393, 406 (2007). These

justifications flow from the “special characteristics of

the school environment”: (1) the need to promote the

school’s educational work and protect the “rights of

other students to be secure and to be let alone,”

Tinker, 393 U.S. at 506, 508; (2) the “inculcat[ion of]

fundamental values necessary to the maintenance of

a democratic political system,” such as civility; and

(3) the in loco parentis authority of schools to protect

children, especially in a captive school audience,

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681,

684 (1986). But none of those “narrow and welldefined circumstances,” Brown, 564 U.S. at 794, apply

off campus, foreclosing the ability of schools to police

constitutionally protected speech.

12

Once school ends and students leave campus,

parents exercise care, custody, and control of their

children, rendering Tinker inapposite. What’s more,

school officials’ interference in students’ off-campus

speech interferes with the parent-child relationship

and violates the fundamental rights of parents.

1. The extraterritorial extension of

schools’ custodial role abridges the

fundamental rights of minors and of

their parents.

After classes end and students return home, a

school loses its custodial interest. That rule stands as

a matter of logic and impressive common law

pedigree. Thomas v. Bd. of Educ., 607 F.2d 1043, 1051

(2d Cir. 1979); Pratt v. Robinson, 349 N.E.2d 849, 852

(N.Y. 1976); Hobbs v. Germany, 49 So. 515, 517 (Miss.

1909); State ex rel. Clark v. Osborne, 24 Mo. App. 309,

314–15 (1887). During school hours, parents cannot

“provide protection and guidance, and students’

movements and their ability to choose the persons

with whom they spend time are severely restricted.”

Morse, 551 U.S. at 424 (Alito, J., concurring).

Accordingly, a school takes on those responsibilities.

But it makes no sense to extend that responsibility to students speaking off-campus. It is unfair to

the school, whose liability is extended even while its

practical ability to exercise oversight is severely

circumscribed. It violates the constitutional rights of

the student, who is subject to government officials’

scrutiny even when not in those officials’ care. And it

impinges parental rights and duties.

13

Respondents spend considerable space addressing Mahanoy Area School District’s violation of

B.L.’s constitutional rights. Resps.Br.11–24. It is

equally important to consider the School District’s

conduct in the context of B.L.’s parents.

Extending Tinker off-campus collides head-on

with parental rights. Public school officials are always

bound by the Constitution; they are government

employees and thus automatically state actors. But

the degree of their authority while the children are at

school is greater than what government actors can

generally exercise because of their in loco parentis

authority. When children are off campus, school

officials no longer have enhanced authority. So, they

cannot regulate student speech any more than the

mayor or city council may regulate the speech of an

adult resident of the community.

At this point, the right of parents to direct the

“care, custody, and control of their children” is at its

apex. Troxel v. Granville, 530 U.S. 57, 65 (2000)

(plurality). Parents have the rights to “establish a

home and bring up children” and “to control the

education of their own.” Ibid. (quoting Meyer v.

Nebraska, 262 U.S. 390, 399, 401 (1923)). For “[t]he

child is not the mere creature of the state; those who

nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.” Pierce v. Soc’y of the

Sisters of the Holy Names of Jesus & Mary, 268 U.S.

510, 535 (1925). When a school no longer has custody

over a child, its authority naturally terminates.

Policing what a student can say outside of school

impinges on the constitutionally protected ability of

parents to decide what is best for their child.

14

Parents’ fundamental rights take on special

significance in the religious context. This Court has

“long recognized” the “enduring American tradition”

upholding the “rights of parents to direct ‘the religious

upbringing’ of their children.” Espinoza v. Mont. Dep’t

of Revenue, 140 S. Ct. 2246, 2261 (2020) (quoting

Wisconsin v. Yoder, 406 U.S. 205, 213–14, 232 (1972)).

Parents have the “primary role” to “inculcat[e] moral

standards” and “religious beliefs.” Yoder, 406 U.S. at

233. “[I]ntrusion by a State into family decisions in

the area of religious training” implicates “grave

questions of religious freedom.” Id. at 231.

This principle is why the Court has repeatedly

and emphatically rejected arguments that public

schools have the authority to interfere in parents’

upbringing of their children, especially in matters of

religion and faith. For example, in Yoder, the state

argued that invalidating its compulsory education

law for Amish teenagers would undermine “the power

of the State as parens patriae to extend the benefit of

secondary education to children regardless of the

wishes of their parents.” 406 U.S. at 229. But, the

Court said, if the state has the power “to ‘save’ a child

from himself or his Amish parents by requiring an

additional two years of compulsory formal high school

education, the State will in large measure influence,

if not determine, the religious future of the child.” Id.

at 232. And that cannot be squared with a parent’s

fundamental right to guide the upbringing of her

child. Id. at 233; cf. Emp. Div. v. Smith, 494 U.S. 872,

881–82 (1990) (heightened scrutiny applies to

“hybrid” claims involving Free Exercise and parental

rights).

15

Nor can schools justify controlling off-campus

speech as a mere aid to parents in exercising their

parental rights and responsibilities. The laws that

this Court has upheld based on that interest dealt

with state restrictions on material received by minors

but that their parents, in their judgment, could show

to them. See, e.g., FCC v. Pacifica Found., 438 U.S.

726, 749–50 & n.28 (1978); Ginsberg v. New York, 390

U.S. 629, 639 (1968). But many school policies, like

the one at issue here, punish speech regardless of

what the students’ parents think. Here, B.L. was

suspended from the cheerleading squad even if her

parents had no problem with what she said in her

Snap. Such policies are “vastly overinclusive.” Brown,

564 U.S. at 804. And they interfere with the parentchild relationship. See Reno v. ACLU, 521 U.S. 844,

878 (1997).

In sum, schools’ custodial interest does not extend

off campus and cannot justify speech restrictions.

2. Schools’ tutelary interest does not

extend off-campus either.

In Tinker and its progeny, the Court examined

what tutelary and educational interests justify speech

restrictions, Morse, 551 U.S. at 403–07, but none of

those interests apply off campus. Off-campus speech

does not cause “substantial disruption of or material

interference with school activities.” Tinker, 393 U.S.

at 514. Such speech is separate from school activities.

Vulgar, off-campus speech does not constitute

inappropriate “speech in the classroom or in school

assembly.” Fraser, 478 U.S. at 683.

16

Indeed, as this Court explained, had the student

in Fraser “delivered the same speech in a public forum

outside the school context, it would have been

protected.” Morse, 551 U.S. at 405. Nor does offcampus speech subject a captive audience of minors

to “sexually explicit, indecent, or lewd speech.”

Fraser, 478 U.S. at 684. Minors, depending on their

parents’ rules, are free to speak however and to

whomever they please.

The general function of schools to promote

democratic values similarly does not justify offcampus regulation. As discussed above, parents have

exclusive domain over that duty at home. In that

setting, parents have the “primary role” in educating

their children on the “elements of good citizenship.”

Yoder, 406 U.S. at 232–33. And the school’s

inculcation of those values ends, logically, when

school does.

Similarly, schools also lose their interest in

protecting the educational rights of other students

once the school day ends. A school may be able to

restrict speech during school hours that “colli[des]

with the rights of other students to be secure and to

be let alone.” Tinker, 393 U.S. at 508; accord Saxe v.

State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir.

2001) (Alito, J.). But off campus, a school has no need

(or even practical ability) to maintain educational

order. To be sure, the state has an interest in

protecting minors, either on campus or off. Erznoznik,

422 U.S. at 212. But that general interest is not

sufficient to censor students’ off-campus speech. See

id. at 214. The “special characteristics of the school

environment” do not extend off campus, i.e., outside

the school environment. Tinker, 393 U.S. at 506.

17

Allowing schools to use their governmental

authority to restrain off-campus speech is dangerous.

“[S]ome public schools have defined their educational

missions as including the inculcation of whatever

political and social views” are held by school boards

and administrators. Morse, 551 U.S. at 423 (Alito, J.,

concurring). This premise is dangerous, as it

empowers school officials “to suppress speech on

political and social issues based on disagreement with

the viewpoint expressed.” Ibid. Consider the policies

for a Wisconsin public-school district, which calls for

all to use language that “disrupts the gender binary.”

Madison Metropolitan School District, Guidance &

Policies to Support Transgender, Non-Binary &

Gender-Expansive Students 24 (Apr. 2018). No doubt

Jack and Owen’s speech runs afoul of this policy,

allowing government officials to impose their

orthodoxy. Expanding a “manipula[ble]” definition of

a school’s educational reach “strikes at the very heart

of the First Amendment.” Morse, 551 U.S. at 423

(Alito, J., concurring).

B. Applying Tinker off-campus would

constitutionalize the heckler’s veto and

an effects-based test for speech that the

First Amendment abhors.

Applying Tinker to off-campus speech necessarily

requires government officials to regulate based on the

speech’s effect. Take B.L’s speech. The school only

noticed it because “visibly upset” students brought it

to their coaches’ attention. Pet.App.5a. Similarly,

Jack’s private speech in a religious group chat could

be considered an “on-campus” disruption to the extent

that other students disliked and publicized his

18

messages. Jack certainly did not bring his speech to

campus; other students’ reactions did. The same goes

for Owen. He made personal, off-campus social media

posts, on his own time, without mentioning his school.

It was the response of others that made Owen’s

speech a government issue.

Unsurprisingly, the School District and the

United States both look to the on-campus effects of

off-campus speech to determine the protection that

speech deserves. Pet.Br.23; U.S.Br.24. Petitioner

advocates for just that rule: “schools can regulate offcampus speech based on its on-campus effects.”

Pet.Br.23 (emphasis added, cleaned up). Because B.L.

referenced her school and cheer team, Petitioner

claims, the school can restrict her speech. Id. at 30.

Similarly, the United States would allow for the

regulation of a social-media post by a football player

criticizing his coach’s play-calling because that would

“undermine respect for the coach’s authority and

team cohesion.” U.S.Br.25.

But this Court has repeatedly affirmed that

“[l]isteners’ reactions to speech” do not give a

constitutional basis to regulate speech. R.A.V. v. City

of St. Paul, 505 U.S. 377, 394 (1992). Quite the

opposite, laws protecting people offended by speech

are presumptively unconstitutional, content-based

regulations subject to strict scrutiny. Forsyth Cnty. v.

Nationalist Movement, 505 U.S. 123, 134 (1992).

19

Going further, the School District and the United

States advocate for viewpoint discrimination, a “more

blatant and egregious form of content discrimination”

that regulates speech “based on the specific

motivating ideology or the opinion or perspective of

the speaker.” Reed, 576 U.S. at 168 (cleaned up).

Contra Pet.Br.29. If B.L. had Snapped “go cheer!”,

there would have been no consequences. If the football

player praised his coach’s play-calling, he would not

be benched. Similarly, if Jack and Owen had

contradicted their religious beliefs, they would not

have been censored.

Elevating listeners’ objections over speech would

constitutionalize the heckler’s veto, something the

First Amendment does not allow. Reno, 521 U.S. at

880. B.L.’s Snapchat can only be said to have caused

a “disruption” on campus because other students

reacted to it on campus. Under the School District’s

view, that authorizes the District to punish B.L., just

as Florida State took the position that it could punish

Jack’s private, respectful message in a religious group

chat only because other students took subjective

offense to it. Consistent with the First Amendment,

schools cannot punish speech simply because some

may have taken offense. See Tinker, 393 U.S. at 508–

09.

There is no justification for content and viewpoint

discrimination toward off-campus speech. Tinker

identified characteristics of the educational environment that are not present off campus. In regulating

off-campus speech based on content and viewpoint,

schools go well beyond the “narrow and well-defined

circumstances” when governments may impinge on

minors’ speech rights. Brown, 564 U.S. at 794.

20

The School District’s position would extend

schools’ oversight into all areas of a student’s life.

Perhaps a student remains free to create speech for

himself, not shared with anyone. Pet.Br.29. But the

student lacks the ability to discuss sensitive matters

with peers without worrying about the School District

censor looking over his shoulder. And speech not

shared with anyone is not really speech at all. See

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of

Boston, 515 U.S. 557, 568 (1995).

***

Given the limits of Tinker’s justifications, the

Court should apply its standard First Amendment

rules to off-campus student speech.

The Court is rightly “reluctant to mark off new

categories of speech for diminished constitutional

protection.” NIFLA, 138 S. Ct. at 2372 (emphasis

added). Speech is only unprotected if a “long (if

heretofore unrecognized) tradition” of its regulation

exists. Ibid. Here, the School District has not shown

that off-campus speech in the age of compulsory

public school is the subject of a long regulatory

tradition. This Court’s precedents recognize the

significant First Amendment rights of minors. Brown,

564 U.S. at 795. Nor is there any evidence that offcampus speech is “narrow and well-defined,”

justifying its restriction. Id. at 794.

21

For one, off-campus speech is certainly not a

“narrow” category. Under the School District’s view,

it has the power to control student speech no matter

where or how it occurs, provided that speech somehow

is directed at the school. If a student tweets “Black

Lives Matter” and school officials think that message

could be disruptive to the educational environment,

the School District could punish the student. That is

an astonishingly broad authority to censor, even

before the necessary discussion over the line-drawing

problems inherent in measuring the potential oncampus disruption from off-campus speech. See

Pet.Br.20.

Given the substantial constitutional concerns

implicated by “the prevention and punishment of” offcampus speech, the Court’s standard First Amendment rules apply. Chaplinsky v. New Hampshire, 315

U.S. 568, 571–72 (1942); accord Brown, 564 U.S. at

799 (applying traditional First Amendment rules to a

minor-speech claim). The Court should emphatically

reject the School District’s invitation to extend Tinker

to off-campus speech.

22

II. The time-tested, categorical First Amendment approach allows government actors

sufficient latitude to regulate problematic

student speech.

Despite Tinker’s inapplicability to off-campus

speech, the First Amendment does not leave school

officials with an empty toolbox. Like any state actor,

schools may regulate unprotected speech consistent

with due process. States and schools can, and do,

police true threats, traditionally unprotected tortious

speech, and harassment no matter where it occurs.

All states have relevant laws on the books, and

numerous convictions and civil suits attest to their

efficacy. Moreover, this Court has provided a

standard for harassment that allows governments to

address it while respecting our first freedoms. See

Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. 629, 645, 650 (1999).

In sum, schools have the tools they need to

address school violence, tortious conduct, and

harassment without restricting off-campus speech.

But in making that point in the context of the opinion

in this case, the Court should pointedly caution

government officials and lower courts that such tools

do not give government officials carte blanche to

punish and censor religious speakers when they

communicate beliefs that sharply divided public

opinion, such as beliefs on marriage or human

sexuality.

23

A. State actors can respond to true offcampus threats.

True threats do not receive First Amendment

protection. That means schools can regulate them.

“‘True threats’ encompass those statements

where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful

violence to a particular individual or group of

individuals.” Virginia v. Black, 538 U.S. 343, 359

(2003). Undoubtedly, violence in schools remains a

troubling problem. But the true-threats doctrine

allows schools sufficient leeway to address it while

respecting speech our Constitution protects.

Schools have banned true threats successfully.

Contra StatesBr.25–26. For example, the Eighth

Circuit sitting en banc rejected a student’s First

Amendment challenge to his expulsion for true

threats written in letters at his home. Doe v. Pulaski

Cnty. Special Sch. Dist., 306 F.3d 616, 619 (8th Cir.

2002) (en banc); accord Haughwout v. Tordenti, 211

A.3d 1, 3 (Conn. 2019). And the Fourth Circuit has

concluded a school can be liable under Title IX when

it fails to respond to true threats not entitled to

constitutional protection. Feminist Majority Found. v.

Hurley, 911 F.3d 674, 691 (4th Cir. 2018).

Indeed, a raft of student criminal convictions

stemming from true threats both on and off campus

shows conclusively that state actors can effectively

protect themselves and their students within existing

First Amendment parameters. E.g., Interest of J.J.M.,

219 A.3d 174, 186 (Pa. 2019); In re J.M., 249 Cal.

Rptr. 3d 83, 86 (Cal. Ct. App. 2019); People v. Khan,

127 N.E.3d 592, 594 (Ill. App. Ct. 2018); State v. Trey

24

M., 383 P.3d 474, 476 (Wash. 2016); Andrews v. State,

930 A.2d 846, 847–48 (Del. 2007); In re Ernesto H., 24

Cal. Rptr. 3d 561, 573 (Cal. Ct. App. 2004); In re A.S.,

626 N.W.2d 712, 715 (Wis. 2001); Commonwealth v.

Milo M., 740 N.E.2d 967, 975 (Mass. 2001); accord,

e.g., United States v. C.S., 968 F.3d 237, 240 (3d Cir.

2020); B.B. v. State, 141 N.E.3d 856, 862 (Ind. Ct.

App. 2020). And the courts have put an exclamation

point on that fact by allowing states to recover costs

from responding to juveniles who threaten schools. In

re J.U., 384 P.3d 839, 845 (Ariz. Ct. App. 2016).

Given well-established, existing laws on true

threats, expanding Tinker off-campus is unnecessary

to deal with problems of school violence. Conversely,

such an expansion will do great violence to students’

constitutional rights.

B. State actors and victims can and have

successfully regulated tortious speech.

In addition to criminal laws, tort law provides

another avenue for students, their parents, and

educators to redress unprotected speech. This Court

has recognized diminished constitutional protection

for speech rising to the level of defamation, invasion

of privacy, or intentional infliction of emotional

distress. E.g., Gertz v. Robert Welch, Inc., 418 U.S.

323, 348–49 (1974). State actors thus have leeway to

regulate truly tortious speech by students, whether

on or off campus.

25

Unsurprisingly, states already police this type of

speech. Numerous states have laws concerning false

communications. E.g., Va. Code Ann. § 18.2-417; La.

Stat. Ann. § 14:47; Utah Code Ann. § 76-9-404. Arkansas specifically identifies student defamation in a

statutory prohibition. Ark. Code Ann. § 6-18514(b)(2)(A). And, of course, the victims of tortious

conduct can file civil actions to vindicate their rights.

Tort claims are a remarkably efficient (and

constitutional) tool. For example, a Louisiana court

recently affirmed the defamation conviction of a

juvenile who falsely claimed on Snapchat that he had

sex with his high school teacher. State in Interest of

G.J.G., 297 So. 3d 120, 122 (La. Ct. App. 2020). And

teachers have received large verdicts—including one

of $3 million—against students who defamed them.

Wagner v. Miskin, 660 N.W.2d 593, 595 (N.D. 2003).

Accord, e.g., Tracey Kaplan, Jury finds girls, parents

liable for calling teacher ‘perv’, THE MERCURY NEWS

(Nov.

15,

2013), https://bayareane.ws/310ellV

(teacher recovered $362,653 in defamation suit

against students and their parents); Huxen v.

Villasenor, 798 So. 2d 209, 211–12 (La. Ct. App. 2001);

cf. Barnett ex rel. Barnett v. Tipton Cnty. Bd. of Educ.,

601 F. Supp. 2d 980, 984 (W.D. Tenn. 2009). For

example, in one of the cases on which the School

District itself relies, Pet.Br.43, the teacher received a

$500,000 verdict against the student who harassed

her. Alexander G. Tuneski, Note, Online, Not on

Grounds: Protecting Student Internet Speech, 89 Va.

L. Rev. 139, 185 (2003) (discussing off-campus speech

involved in the case J.S. v. Bethlehem Area Sch. Dist.,

807 A.2d 847, 865 (Pa. 2002)).

26

Allowing true torts to proceed as torts—rather

than unfettered government censorship authority—

strikes the proper balance between state authority

and protected speech. Speech that is false or tortious

on matters of purely private concern is appropriately

regulable. To the extent that states believe existing

torts may not adequately address harassment, they

retain the power to create new ones that do (within

First Amendment parameters). But mere expressions

of opinion, such as B.L.’s distaste for the cheer team,

or the communication of Jack and Owen’s deeply held

religious beliefs, convey the ideas and viewpoints of

their speakers. And the First Amendment surely

prohibits the state from restricting them. In our

“permissive, often disputatious, society,” the First

Amendment’s “hazardous freedom” provides “the

basis of our national strength and of the independence

and vigor of Americans.” Tinker, 393 U.S. at 508–09.

C. State actors can also successfully

regulate true student harassment. But

this Court should make clear what is—

and is not—harassment in the context of

our cancel culture.

State criminal harassment laws and this Court’s

precedents give governments adequate tools to

combat student harassment. No doubt harassment in

schools is a problem. StatesBr.4–14. But in an age

where many teach that “words wound” and “silence is

violence,” educators cross a constitutional line when

they use their authority to prohibit students—

particularly those of faith—from expressing their

beliefs on subjects including marriage and sexuality.

27

To begin, all states have general anti-harassment

laws that apply to juveniles. Pet.Br.41 n.8. While

these laws may raise First Amendment concerns in

some applications, they generally provide constitutional tools to address harassment, in or out of school.

E.g., State v. Asmussen, 668 N.W.2d 725, 734 (S.D.

2003); Galloway v. State, 781 A.2d 851, 857 (Md.

2001). There is no shortage of convictions under these

laws for juveniles who harass others on or off campus.

E.g., State in Interest of D.J.S., 255 So. 3d 1177, 1189

(La. Ct. App. 2018); In re P.T., 995 N.E.2d 279, 286

(Ohio Ct. App. 2013); In re Alex C., 13 A.3d 347, 348

(N.H. 2010); T.B. v. State, 990 So.2d 651, 655 (Fla.

Dist. Ct. App. 2008); In re Interest of Jeffrey K., 728

N.W.2d 606, 608 (Neb. 2007); In re Pedro H., 764

N.Y.S.2d 274, 275 (N.Y. App. Div. 2003); In re B.R.,

732 A.2d 633, 639 (Pa. 1999); In re Junior B., 78 Cal.

Rptr. 436, 438 (Cal. Ct. App. 1969); accord, e.g., People

v. Choi, 274 Cal. Rptr. 3d 6, 10 (Cal. Ct. App. 2021).

Expanding Tinker off campus would burden the First

Amendment unnecessarily, given these extant laws.

Second, this Court has provided a roadmap that

schools can use to address harassment. In Davis, the

plaintiff alleged that a male classmate of her fifthgrade daughter sexually harassed her daughter over

many months. 526 U.S. at 633. On multiple occasions,

the harasser attempted to touch the victim sexually,

made vulgar statements, and acted in a sexually

suggestive manner. Id. at 633–34. Each time, the

victim reported the incident to her teachers and

parent, and her parent would follow up with school

authorities. Ibid. The harassment caused the victim’s

grades to drop and led her to consider suicide. Id. at

634.

28

This Court acknowledged that students and their

parents have an implied right of action under Title IX

against schools that receive federal funds and do not

adequately address harassment. Davis, 526 U.S. at

633. A school can be liable if it is deliberately

indifferent to sexual harassment and “exercises

substantial control over both the harasser and the

context in which the known harassment occurs,” and

the harassment is “so severe, pervasive, and

objectively offensive that it can be said to deprive the

victims of access” to educational opportunities. Id. at

645, 650. Whether conduct rises to the level of

harassment “depends on a constellation of

surrounding circumstances, expectations, and

relationships.” Id. at 651. Relevant circumstances in

the school context include “the ages of the harasser

and the victim,” “the number of individuals involved,”

and the normal interactions of children “that would

be unacceptable among adults.” Ibid.

While the Court used the Davis standard to

articulate the scope of schools’ civil liability, it is

equally useful as a guide to educational institutions

for regulating student harassment. Matching the

standard for a school’s civil liability to its policing of

off-campus speech makes eminent sense. To the

extent schools have concerns about liability for offcampus speech, they can regulate it according to the

standard to which they would be held accountable.

The Davis standard would not upset expectations

because existing state laws generally fall in line with

it. Every state already has its own school antiharassment laws. StatesBr.15. Many of them track

Davis’s standards for the severity or educational

consequences of harassment. E.g., Tex. Educ. Code

29

Ann. § 37.0832(a)(1)(A)(ii); Fla. Stat. Ann.

§ 1006.147(2)(d); Cal. Educ. Code § 48900(r)(1)(D);

N.Y. Educ. Law § 11(7)(a); Ind. Code Ann. § 20-33-80.2(a)(4).

State amici point out that many state laws also

use the Tinker standard to determine whether a

student should be disciplined for on or off-campus

actions. StatesBr.17–18. But the rule proposed here

does not render these laws unconstitutional in all or

even most respects. The Tinker standard could still

apply to regulate off-campus conduct or harassment

that meets the Davis definition. Further, Tinker can

govern those hecklers who bring substantial

disruptions to campus because of off-campus speech.

The hecklers, not the speaker, disrupt the educational

environment, justifying a school’s response. See

Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d

764, 770–71 (9th Cir. 2014) (O’Scannlain, J.,

dissenting from denial of rehearing en banc). And

though Davis also required schools to have control

over the harassment to trigger liability, that

requirement does not implicate the First Amendment.

States remain free to modify the control element,

depending on the degree of responsibility they desire

to give their schools.

The Davis standard also appropriately protects

speech while respecting governmental interests. The

Court crafted the standard to fit with First

Amendment protections, explaining that “it would be

entirely reasonable for a school to refrain from a form

of disciplinary action that would expose it to

constitutional or statutory claims.” Davis, 526 U.S. at

649. Lower courts have similarly held that the Davis

standard can withstand First Amendment scrutiny.

30

E.g., Feminist Majority Found., 911 F.3d at 691;

Rowles v. Curators of the Univ. of Mo., 983 F.3d 345,

358–59 (8th Cir. 2020).

In sum, the Davis standard strikes the right

balance between preventing harassment and

protecting the right of religious students to live out

their faith. But as Jack’s and Owen’s cases show,

school officials too often have a problem dealing with

religious speech when they disagree with it. It is

imperative that this Court make clear for schools,

students, families, and lower courts the line between

harassment and constitutionally protected speech.

Here are but a few examples.

Jack provides a paradigm case of speech that is

not harassment. He sent a message in a private,

religious group chat out of concern for a discrete set of

his fellow students unknowingly contravening their

shared Catholic faith. Nothing about Jack’s speech

was severe, pervasive, and objectively offensive. He

merely expressed his deeply held convictions. He did

not target the purported “victims” of his respectful

words but rather expressed them privately to coreligionists. No students were denied any educational

opportunity. (Quite the contrary, Jack’s fellow

senators denied Jack his opportunities in retaliation

for his religious speech.) If school officials act to

punish such speech, they violate the First

Amendment.

31

Owen’s speech presents another straightforward

example of protected speech. He publicly shared

videos regarding the Bible: “male and female He

created them.” Genesis 1:27. These words capture the

essence of the “life-giving relationship between men

and women, which brings them into intimate union

with God.” Congregation for Catholic Education,

“Male and Female He Created Them”: Towards a Path

of Dialogue on the Question of Gender Theory in

Education ¶ 31 (2019). In pointing toward the

language of Genesis—and a Church teaching

intended to enable human flourishing and to protect

the dignity of every human person—Owen spoke

about his beliefs and did not target any individual. In

no way could Owen’s videos rise to the level of

pervasive and severe harassment that denied anyone

an educational opportunity. Again, punishing Owen

for his speech violates the First Amendment.

Private conversations—either on or off campus—

are also not harassment where a student advocates

for her religious beliefs or encourages others to follow

religious principles. Consider a student who shows

the courage to communicate God’s plan of salvation.

In several respectful conversations with a fellow

student, who voluntarily engages in the conversations, she discusses her faith and how its teaching

enables human flourishing. No governmental official

should be allowed to characterize such conversations

as severe, pervasive, and objectively offensive conduct. One student’s speech exemplifies concern for the

welfare of the other student.

32

A student who repeatedly and aggressively

confronts another student, on campus or off, might

present a closer case. For example, a Christian

student may be friends with someone considering an

abortion. The student—who believes life begins at

conception and that abortion not only kills an

innocent person but harms the mother—would want

to tell her friend. But the situation changes if that

student repeatedly insults and denigrates the other

for considering abortion, or publicly shames the

student in front of peers. The school should then

assess the circumstances and expectations: whether

the student’s actions were pervasive and severe,

whether the pregnant student or her parents told the

speaker to stop, and what the circumstances of each

interaction were.

If the student’s speech and actions interfere with

another student’s educational opportunities—like in

Davis, where the victim’s grades dropped and she

contemplated suicide—then the school likely has

some authority to act. But the analysis must still

consider all the relevant circumstances. And school

officials must recognize that younger students “often

engage in insults, banter, teasing, shoving, pushing,

and gender-specific conduct that is upsetting to the

students subjected to it,” yet that is not harassment.

Davis, 526 U.S. at 651–52. For younger students, a

note or call informing parents of the circumstances

may be a more appropriate first step than

disapprobation or punishment.

33

In sum, existing anti-harassment laws and the

Davis standard provide schools all the tools necessary

to address true student harassment. But at a time

when popular culture—and many government

officials, including teachers—have exhibited systemic

discrimination against and hostility toward people of

faith and their attempts to communicate their faith’s

teachings in the public square, it is crucial that this

Court make clear that schools may not assert their

anti-harassment powers to censor speech they dislike

or even that which might make other students

uncomfortable. This case requires the Court to make

abundantly clear the line between harassment and

protected speech.

***

School officials have numerous options to address

serious problems of school violence and harassment.

But none of those issues are implicated in this case or

cases like Jack’s or Owen’s. In each case, the problem

wasn’t a physical threat or aggressive bullying. The

problem was that school officials acted to punish (or

in Jack’s case, allowed a student to be punished)

merely because they disliked the content or viewpoint

of what the student said.

If B.L. had praised the cheer team, there would

have been no repercussions. The same would be true

had Jack or Owen communicated the “right” message.

Conflicting outcomes based on content and viewpoint

prove that government officials have targeted speech

based on its communicative content. The First

Amendment flatly prohibits that. Listeners’ subjective offense to speech, including a minor’s speech,

never justifies state censorship and control.

34

CONCLUSION

This Court should affirm.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

TYSON C. LANGHOFER

MATHEW W. HOFFMANN

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

KENNETH W. STARR

5404 Pointwood Circle

Waco, TX 76710

Kenneth.w.starr@gmail.com

MARCH 2021