RALEIGH — North Carolina Attorney General Josh Stein has joined a brief which urges the U.S. Supreme Court to allow school districts to “regulate” student speech off campus when that speech has “substantial effects on the school or other students’ learning.”
Those signing onto the brief are all Democratic attorneys general from the District of Columbia and 22 other states: including Massachusetts, California, Colorado, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.
The brief cites bullying and cyberbullying as valid reasons to allow K-12 school districts to monitor the speech of students off campus and outside school hours. According to Stein’s press release, the brief was filed in Mahanoy Area School District v. B.L., a case where a school district wanted to “hold students accountable” for their speech off campus.
“When bullies target students, they no longer just do it at school during the day,” said Stein. “Our young people can be bullied anywhere, at any time. It’s one of the most troubling consequences of technology, and the harm students experience can last long after graduation. I urge the Supreme Court to uphold schools’ ability to protect students from bullying, wherever they are.”
North Carolina already has applicable cyberbullying laws in place. State statutes on cyberbullying include a section addressing the “intent to intimidate or torment a minor” through online means.
Stein’s press release also mentions Tinker v. Des Moines Independent Community School District (1968), a case in which the Supreme Court ruled that public school officials were barred from punishing students for exercising their First Amendment rights on school grounds. The only exception in the Tinker ruling is if a student’s speech “materially and substantially” interfered with “requirements of appropriate discipline and in the operation of the school.”
The brief filed by Stein and his attorney general colleagues want the Tinker ruling applied to off-campus speech under the same premise that it constitutes disruption at school or causes harm in some way.
“Because of public schools’ obligations to protect students and promote learning, the Supreme Court has long given them more leeway to regulate student speech under the First Amendment than states have to regulate adults’ speech,” Stein’s release reads. “But the lower court in this case ruled that schools may never regulate students’ off-campus speech.”
As Stein mentions, a lower court is standing in the way of regulating student off-campus speech. The Third Circuit Court of Appeals ruled in favor of B.L. 2020, stating that “Tinker does not apply to off-campus speech — that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
The collection of attorneys general including Stein want the Supreme Court to reject the lower court’s ruling, as they believe it will “undermine state anti-bullying laws and prevent schools from addressing in-person and online bullying that originates off campus.”
The state attorneys general are now also joined by President Joe Biden’s Department of Justice, which filing a brief that, in short, says the Third Circuit went too far in protecting B.L.’s Constitutional right to free speech and did not give schools enough latitude to regulate and ultimate punish students for their speech outside of school. The DOJ’s brief also seems to argue that students don’t have the full constitutional rights of adults.
“Although this Court has made clear in the context of on-campus speech that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’ Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), ’the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,’” the Biden DOJ brief states.