DISCIPLINARY CONSIDERATION HIB AND OFF-CAMPUS SPEECH
More than a decade after New Jersey’s Anti-bullying Bill of Rights was enacted, harassment, intimidation and bullying (HIB) remains. One area that school administrators continue to struggle with is whether discipline may be imposed in response to incidents of HIB committed off school grounds particularly when the school is balancing freedom of speech protections.
More than 50 years ago, the seminal United States Supreme Court case involving a student’s right to free speech, Tinker v. Des Moines Independent Community School District, et. al., made clear that student speech is protected except when it “materially and substantially interfere[s] with the requirements of appropriate discipline in the opera- tion of the school.” 393 U.S. 503, 512 (1969). Identical language ap- pears at N.J.A.C. 6A:16-7.5. Specifically, the regulation provides that school authorities “have the right to impose a consequence on a student for conduct away from school grounds” so long as such authority is only exercised when it is handled in accordance with the school district’s code of student conduct; it is reasonably necessary with respect to the safety of students, staff, or school grounds; and, “when the conduct that is the subject of the proposed consequence materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.”
In Mahanoy Area School District, 141 U.S. 2038, 2042 (June 23, 2021), the United States Supreme Court held that a public high school violated the First Amendment rights of one of its students when it suspended the student from the school cheerleading team in response to a social media Snapchat post, made off-campus, outside of school hours, and using only her personal cellphone to make a post which was shared with her private circle of Snapchat friends. In the post, the student used language and gestures that criticized the school and its cheerleading team.
In addition to the standard set forth in Tinker, the Mahanoy Court noted that while a school’s regulatory interests remain significant in some circumstances of off-campus speech, such circumstances are rare. Accordingly, the Court found that there are three features of off-campus speech that often, if not always, distinguish a school’s efforts to regulate off-campus speech. First, “a school, in relation to off-campus speech, will rarely stand in loco parentis,” and thus, “off-campus speech will normally fall within the zone of parental, rather than school-related responsibility.” Id. at 2046. Second, “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day,” and “[t]hat means courts must be more skeptical of a school’s efforts to regulate off-campus speech.” Id. Third, because “America’s public schools are the nurseries of democracy,” “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” Id. As a result, in Mahanoy, distractions in one Algebra class and heightened tensions amongst members of the school’s cheerleading team were insufficient disruptions to school activity in order to warrant disciplinary action. Id. at 2047-48. In short, the Court held that there was “no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action” in violating the student’s first amendment protections. Id.
Exactly three months after the Supreme Court’s decision in Mahanoy, the New Jersey Commissioner of Education issued its final decision in R.H. and M.H., on behalf of, A.H. v. Borough of Sayerville Board of Education, OAL Dkt. No. EDU 09435-17 (June 24, 2021), C #198-21 (September 23, 2021). The Sayerville case stemmed from a 2017 social media post wherein an eighth-grade student (A.H.) posted a screenshot of a friend with a cosmetic mud mask on her face with the caption, “when he says he’s only into black girls.” OAL Dec. at 6. The post was made while A.H. was at home on a Saturday, and was on an internet network and social media account that was unaffiliated with the Sayerville school system. Id. The following week at school, several students complained to the principal about the post, and an HIB investigation was initiated. C #198-21, at 6. Additionally, in response to several students who were very offended by the post and wanted to confront A.H., as well as rising tensions in the school and teachers hearing students talking about the matter, the principal changed her schedule in order to monitor the school cafeteria and hallways for weeks because she had concerns that there could be an altercation due to the incident, and she wanted to take proactive measures in order to prevent matters from “erupting” in the cafeteria or crowded hallways. Id. Ultimately, the district’s HIB investigation found that A.H. committed an act of HIB, and as a result, she received a one-day suspension from school and was removed from the Student Council. Id. at 1.
First, the Commissioner held that petitioners did not establish that the board acted in an arbitrary, capricious, or unreasonable manner in finding that A.H. committed an act of HIB. In reviewing the fact that the Sayerville incident occurred off-campus, the Commissioner held that New Jersey statutes and regulations require school district HIB policies to include provisions for responses to HIB that occur off school grounds when a school employee is made aware of the incident. Id. at 7. Accordingly, the board did not act in an arbitrary, capricious, or unreasonable manner when it investigated the off-campus conduct that was reported to the school. Id. at 7-8. Second, the Commissioner found that Mahanoy did not prevent the district in Sayerville from regulating A.H.’s speech, noting that A.H.’s off-campus social media post caused a substantial disruption to the school. Id. at 8. Furthermore, despite the petitioners’ arguments and the holding in Mahanoy, while the Commissioner did not specifically and expressly carve out a separate discussion regarding whether it was appropriate for the Sayerville school district to impose discipline on A.H. for her off-campus actions, the board’s discipline of A.H. was not overturned.
A reading of Tinker, Mahanoy, and the Commissioner’s final decision in Sayerville may leave some school administrators scratching their heads with respect to the level of impact and “substantial disruption” an off-campus incident must cause in order for school administrators to soundly issue discipline to offending students for actions that touch freedom of speech considerations.
On May 12, 2023, the United States District Court for the District of New Jersey issued a decision that may help to foreshadow where a school district’s reach is headed. On November 8, 2021, the same petitioners in the Sayerville matter filed a complaint with the United States District Court alleging, amongst other claims, that the Sayerville Board of Board of Education previously violated A.H.’s first amendment rights pursuant to 42 U.S.C. 1983. See, R.H. and M.H. on behalf of minor child A.H. v Borough of Sayerville Board of Education, et. al., 2023 WL 3431214 (May 12, 2023). In order to re- cover a claim under 42 U.S.C. 1983, a petitioner must establish that a state actor engaged in conduct that deprived the petitioner of “rights, privileges, or immunities secured by the constitution or laws of the United States.” Id. at 6. In response to petitioners’ complaint, the Sayerville Board of Edu- cation filed a motion to dismiss the matter for failure to state a claim. Id. at 1. Petitioners opposed the motion and the first amendment claim survived. Id. This means that the reviewing court found that whether A.H.’s private social media post caused a “substantial disruption sufficient for regulation of the speech by the Board” was an issue of fact that required further review. Id. 7. However, while the Court made clear that additional discovery was required in order to determine if additional facts existed in order to support the threshold of “substantial disruption,” the court also noted that “the alleged disturbance...does not meet Tinker’s demanding standard for regulation of student speech especially considering that with respect to off-campus speech.” Id. In other words, the facts that were a part of the court’s record at the time of the motion to dismiss—school administrators had to keep a close watch on students in the cafeteria and hallways due to fear of confrontation between A.H. and other students—would likely not amount to the sort of “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the Sayerville School District’s regulation of A.H.’s free speech (and resulting disciplinary action). Accordingly, the Court held, “should discovery further elucidate disruption to school activity caused by A.H.’s post, such evidence may place A.H.’s speech outside the protections afforded by the First Amendment.” Id
While only time and further action by the Court will ultimately determine whether the Sayerville Board violated A.H.’s first amendment rights to freedom of speech, at this time, boards of education may be guided by the Supreme Court’s holding in Mahanoy and the U.S. District Court’s initial words of caution in Sayerville when faced with situations where the school is looking to impose discipline on students for off-campus conduct. In those cases, schools should be further guided by the language of N.J.A.C. 6A:16-7.5 and remember that school authorities “have the right to impose a consequence on a student for conduct away from school grounds” so long as such authority is only exercised when it is handled in accordance with the school district’s code of student conduct; it is reasonably necessary with respect to the safety of students, staff, or school grounds; and, “when the conduct that is the subject of the proposed consequence materially and substantially interferes with the requirements of appropriate discipline in the operation of school. (Emphasis added). Additionally, when dealing with off campus speech related issues school administrators should also be mindful of Mahanoy’s guidance that while a school’s regulatory interests remain significant in some circumstances of off-campus speech, such circumstances are rare, and thus remember Mahanoy’s three features of off-campus speech that often, even if not always, help distinguish a school’s efforts when considering the regulation of off-campus speech. First, “a school will rarely stand in loco parentis when a student speaks off-campus.” Second, “from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day [thus requiring courts to be more skeptical of a school’s efforts to regulate off-campus speech].” Third, the school itself has an interest in protecting a student’s unpopular expression, especially off-campus expression, because “America’s public schools are the nurseries of democracy.”
As noted, the Sayerville petitioners’ first amendment claims currently remain in-tact and will likely be further addressed through additional discovery and judicial review.
This alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Jennifer A. Osborne of Cornell Merlino at email@example.com.