Op-Ed: Social media and students’ First Amendment rights

John Kellmayer | June 9, 2021 | Opinion
A case before the U.S. Supreme Court could well alter the whole idea of free speech for NJ students. Are we ready for possible changes?
John Kellmayer

I was a New Jersey school administrator for 30 years, and at various points in my career I was responsible for discipline in grades pre-K to 12. I have disciplined thousands of students and suspended hundreds. I have conducted many investigations related to claims of student harassment, intimidation, and bullying.

Twice, I was involved in riots at the high school level, when students and staff were injured. Both riots were related to student social media activity that occurred off school grounds. I have angered parents because I have disciplined their child for social media activity that occurred off school grounds. I have also angered parents for not disciplining someone else’s child for social media activity that occurred off school grounds. I have been deposed in bullying-related lawsuits that included social media activity that occurred off school grounds.

This month it is expected that the U.S. Supreme Court will rule on a request from a Pennsylvania school district to discipline students for what they say on social media. Although this case does not involve bullying, harassment or intimidation, it will have particular significance to New Jersey public schools because of the state’s stringent anti-bullying and harassment regulation. Since the implementation of the New Jersey Anti-Bullying Bill of Rights in September 2011, public school personnel have been required to follow rigorous investigating and reporting requirements for cases of reported or suspected harassment, intimidation and bullying. The majority of these cases involve social media activity that occurred off school grounds.

The Pennsylvania case originated because a freshman who didn’t make the varsity cheerleading squad expressed her frustration by posting a vulgar message on Snapchat to about 250 friends. Although messages on Snapchat are meant to disappear in a few minutes, another student took a screenshot and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, arguing that the punishment was necessary to “avoid chaos” and to maintain a “team-like environment.”

The Pennsylvania school district brief to the Supreme Court states, “The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online. Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

The district has requested a definitive ruling from the court on their authority to discipline students for what they say out of school. This decision is likely to be the most important in decades on the issue of student free speech and is likely to change how New Jersey public schools attempt to discipline students for off-campus social media activity. What New Jersey students are allowed to say on social media may be about to change.

Justin Driver, law professor at Yale and the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind” stated, “It is difficult to exaggerate the stakes of this constitutional question. In the modern era, a tremendous percentage of minors’ speech occurs off campus but online. Judicial decisions that permit school to regulate off-campus speech that criticized public schools are antithetical to the First Amendment.”

One of the most important student free speech decisions handed down by the Supreme Court occurred in the 1969 decision, Tinker v. Des Moines Independent Community School District. In Tinker, a school punished students for wearing black armbands in a silent protest against the Vietnam War. The school district claimed the protest would cause a disruption at school but could point to no evidence that disruption had occurred or would occur as a result of similar protests. The Supreme Court held: “It can hardly be argued that either students or teachers shed their constitution rights at the schoolhouse gate. Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

So much has changed since 1969 when social media was all but nonexistent, but the basic Tinker principle remains in effect today: Does the school reasonably fear that off-campus speech and social media activity will substantially disrupt or interfere with the operation of the school and with the rights of other students? However the U.S. Supreme Court decides on the Pennsylvania case, New Jersey officials should be prepared to modify the Anti-Bullying Bill of Rights so that school personnel tasked with investigating charges of harassment, intimidation and bullying will have clear guidelines as to what students may and may not say on social media.