On a good day, the members of the Nutmeg Board of Education do not like expulsion hearings.  However, the hearing the Board held last week was particularly painful.

That expulsion hearing was to consider the recommendation of Mr. Superintendent that Joe Blow, a sophomore at Nutmeg Memorial High School, be expelled for his persistent bullying of Sally Student in violation of the Board’s safe school climate policy.  Joe and Sally had been more than friends for about six months.  However, Sally decided that Joe was not the one for her and she dumped him.  Joe did not take it well.

At the expulsion hearing, Mr. Superintendent presented evidence that Joe had been bullying Sally ever since they split up.  He called Sally to testify, and she tearfully explained that her social life at school had been a nightmare ever since she broke up with Joe.  She presented screenshots of Joe’s posts on Instagram where Joe had posted pictures of her with nasty captions.  She explained that she shared those pictures with Joe privately and that she was mortified that he was now posting them online.  Every day at school, she wept, other students make snide remarks to her about how mean she had been to Joe.

Citing the Board’s safe school climate policy. Mr. Superintendent explained that Joe’s posts are classic examples of bullying behavior that have caused emotional harm to Sally and created a hostile environment at school for her.  “Joe’s Instagram posts were cyberbullying pure and simple!” he exclaimed.  With that, Mr. Superintendent rested his case.

Joe and his family had lawyered up, and local legal scourge Bill Alot was at the hearing to speak in Joe’s defense.  Attorney Alot did not dispute that Joe had hurt Sally’s feelings and that his posts about her were mean.  However, citing the First Amendment, he claimed that his client had every right to say hurtful things about Sally, given how she had broken his heart.  “We don’t need the First Amendment to play nice,” he thundered dramatically.  “We need the First Amendment to protect unpopular speech, including Joe’s unpleasant posts about Sally.”  Attorney Alot then went on to attack the very premise of the expulsion hearing, claiming that school officials have no jurisdiction over posts on Instagram.  “Joe’s actions here were all off-campus, and this Board of Education has no business telling Joe what he can and cannot say outside of school.  It is time for Mr. Superintendent and this Board to butt out of Joe’s life.”

The Board members were stunned by this wholesale attack on its safe school climate policy, and after a brief recess, they told both parties that they would need some time to think this through.  Attorney Alot told the Board members to take all the time they needed, but he warned them that, in accordance with the Freedom of Information Act and basic fairness, Joe, his parents, and his legal counsel must be present during any deliberations.

Does Joe have a free speech right to continue to bully Sally and hurt her feelings?  Do the Board members have the right to discuss this case privately before making a decision?

*         *         *

In 1969, the United States Supreme Court handed down its seminal decision in Tinker v. Des Moines Independent Community School District.  There, the Court acknowledged that students retain their First Amendment rights when they go to school, holding famously that “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”  In that case, the Court announced the well-known Tinker test for determining whether student speech is protected: school administrators may regulate student speech if they reasonably forecast that such speech will cause material disruption or substantial interference with the educational process or violate the rights of others.  Fifty-plus years later, however, we are wrestling with the question in reverse:  do school administrators retain their right to impose discipline on students for their speech off campus (outside the “schoolhouse gate”)?

Connecticut is under the jurisdiction of the Second Circuit Court of Appeals, which has long applied the Tinker test to confer authority on school officials to regulate student speech that has a nexus to the school, even when it occurs off-campus.  Over forty years ago, the court relied on Tinker in a case involving an underground student newspaper.  Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043 (2d Cir. 1979).  In a concurring opinion that has turned to be more influential than the majority decision, Judge Jon O. Newman stated, “School authorities ought to be accorded some latitude to regulate student activity that affects the matter of legitimate concern to the school community, and territoriality is not necessarily a useful concept in determining the limit of their authority.”  (Emphasis added).  Since then, the Second Circuit has applied the Tinker rule to rule that school officials may discipline students when their threatening or vulgar offline statements are disruptive to school operations.  Wisniewski v. Bd. of Educ., 494 F.3d 34 (2d Cir. 2007); Donniger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

By contrast, the Third Circuit recently took a different tack, holding last year that Tinker does not give school officials authority over student online speech.  In that case, the student was disappointed to learn that she had not made the varsity cheerleading team for the second year in a row, and she vented her frustration by posting a picture on Snapchat of herself and a friend with middle fingers raised, adding a vulgar caption.  When she was suspended from the cheerleading team for the remainder of the season for the Instagram post, she brought suit, and the court ruled that school officials had violated her First Amendment rights.

Given the split in the circuits, the United States Supreme Court has agreed to hear the appeal of the school district, and we eagerly await the Court’s decision in that case.  Mahanoy Area School District v. B.L., No. 20-255, 2021 WL 77251 (U.S. Jan. 8, 2021).  The B.L. case dealt with some harmless vulgarity on Instagram that was of little consequence, and it is understandable that the court would hold that school administrators should stay out of such matters.  However, if the Supreme Court agrees that school officials cannot rely on the Tinker test to regulate online speech, the B.L. case could be a big problem for school officials in combatting bullying behavior, which of course now largely occurs online and thus off-campus.

In this regard, we note that the General Assembly amended the definition of “bullying” in 2018, effective this July 1, 2021 in relevant part to read: (1) “Bullying” means an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.”  Boards of education must now amend their safe school climate plans and related policies the law changes on July 1, and the CABE policy service can be of great assistance in that regard.

Finally, Bill Alot conflated two provisions of the FOIA in demanding that the Board permit the student, parents and counsel to observe the deliberations.  Under the FOIA, an employee whom a board of education is discussing can require that the discussion be held in open session.  However, here Bill was wrong because, with student expulsion matters, boards of education retain their right to deliberate privately before issuing their decision.