The members of the Nutmeg Board of Education typically take the months of July and August off, and they were thus surprised when Mrs. Superintendent informed them that they needed to come to an expulsion hearing. Veteran Board member Bob Bombast was particularly agitated about this request. On the one hand, he is in a summer rental on the Cape and does not want to come back for a hearing. On the other hand, Bob hates to miss out on the action. So he called Mrs. Superintendent and asked her what was going on.
“It’s serious!” Mrs. Superintendent explained. “Sally Student was on Instagram and she posted a number of pictures of one of her teachers that she had copied from the teacher’s Facebook page. To make matters worse, she added vulgar captions to the pictures, calling the teacher a ‘dumb &%@^*.’ The Board has to take a stand against such disrespect!”
Bob was quick to agree, telling Mrs. Superintendent that she could count on his support if he could participate remotely, given that he is on vacation on the Cape. Mrs. Superintendent reminded Bob, however, that the Board has a policy prohibiting Board members from participating in executive session by remote means. But Bob was undeterred, and he asked Mrs. Superintendent to send him the link for the hearing.
At the appointed date and time, the Board members met for the expulsion hearing. No one raised an issue when the Board convened into executive session and Bob signed on to the executive session Zoom link. The hearing started with Mrs. Superintendent presenting the case against Sally. “This student’s conduct was outrageous!” Mrs. Superintendent started her presentation in high dudgeon. She projected the various pictures Sally had posted on Instagram, including the vulgar captions, and dramatically concluded with “I rest my case.”
Mr. Chairperson then turned to Sally and asked her what she had to say for herself. Sally didn’t have much to say. She admitted that the posts were hers, and she explained that she didn’t mean any offense, as she was just fooling around. Mr. Chairperson complimented Sally on her honesty and was just about to close the hearing and start the Board’s deliberations.
“Just one more thing,” Sally interrupted. “If you expel me, you will be violating my constitutional rights. That could be an expensive mistake.”
Mr. Chairperson did his best to hide his annoyance at being threatened by a fifteen-year-old, and he declared the hearing closed. After Sally and her parents left the room, Mrs. Superintendent told the Board members that she certainly hoped that the Board would not back off because of Sally’s threat. Mr. Chairperson told the group that, while he found the posts offensive, he wondered whether Sally’s were protected speech. But Bob Bombast wasn’t buying it. “We need to protect our teachers from this abuse. If we let Sally get away with this, who knows what students will post online!”
After further discussion and with Mrs. Superintendent’s encouragement, the Nutmeg Board of Education voted to expel Sally for the first marking period of the 2021-2022 school year. Should it be worried about Sally’s threat?
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Given a recent decision of the United States Supreme Court, Sally may well have a valid claim that her expulsion violated her rights under the First Amendment. But this situation also raises a constitutional issue under the Fourteenth Amendment, and it highlights a change in the Freedom of Information Act that board members should know about.
First, in June of this year, the United States Supreme Court held that the Mahanoy Area School District in Pennsylvania violated the free speech rights of a student when it suspended her from cheerleading for the season because, after the student did not make the varsity squad, she had posted pictures on Snapchat of her making vulgar gestures and statements about cheerleading. Mahanoy Area School District v. B.L. (U.S. 2021). As readers may recall, the Court first ruled in 1969 that students have free speech rights in school unless their speech causes substantial disruption or material interference with the educational process or invades the rights of others. Tinker v. Des Moines Independent School District (U.S. 1969). Until Mahanoy, however, the Court had never ruled on whether the authority of school officials to address disruptive speech extends beyond the “school house gate.”
A majority of the judges on the Third Circuit, the appellate court that considered B.L.’s case, had ruled that Tinker does not apply to off-campus speech. Happily, while it ruled in the student’s favor, the United States Supreme Court rejected the Third Circuit’s reasoning:
The school’s regulatory interests remain significant in some off-campus circumstances. . . . . These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.
While it thus preserved the applicability of the Tinker rule to off-campus speech, the decision reminds us, however, that regulation of student speech is permitted under Tinker only when the speech “seriously” disrupts or “materially” interferes with the educational process.
Applying this high standard to B.L.’s actions, it is not surprising that the Court ruled in her favor. Similarly, before voting to expel Sally, the Nutmeg Board should consider carefully whether and how Sally’s posts on Instagram disrupted the educational process.
In addition to considering Sally’s First Amendment rights, the Board here should take a refresher course on due process. The Fifth and Fourteenth Amendments provide that no person should be deprived of life, liberty or property without due process of law. Essential to due process is an impartial decision-maker. When board members consider a recommendation from a superintendent that a student be expelled, they sit as judges, and they should be impartial. Just as it would be improper for a prosecutor to talk ex parte with the judge in a pending case, so too was it improper for Mrs. Superintendent to talk with Bob about the merits of the case before the hearing. Compounding the problem, Mrs. Superintendent sat in and even participated in the Board’s deliberations. Once the hearing is closed, boards should make decisions about expulsion recommendations without further input from the superintendent.
Finally, we note that the Nutmeg Board has a policy against Board members participating remotely in executive session. Such restrictions are not uncommon, and they reflect a concern that it is not possible to assure the confidentiality of executive session if a board member is participating by electronic means. However, such prohibitions are no longer enforceable, given a provision of the recently-passed Budget Implementer bill. Specifically, Section 149 of P.A. 21-2 of the June 2021 Special Session amends the FOIA to provide:
Any public agency that conducts a meeting shall provide members of the public agency the opportunity to participate by means of electronic equipment, except that a public agency is not required to adjourn or postpone a meeting if a member loses the ability to participate because of an interruption, failure or degradation of that member’s connection by electronic equipment, unless the member’s participation is necessary to form a quorum.
The law places no conditions on the “opportunity to participate” in a meeting “by means of electronic equipment,” and a blanket prohibition against board members participating remotely in executive session is no longer permissible.