Can schools discipline students for what they post online? While the classic lawyer’s answer—“It depends”—still applies, the window has just gotten a bit narrower. In June, the Supreme Court ruled in favor of a former high school cheerleader who was suspended by her JV team for posting “F—k school f—k softball f—k cheer f—k everything” on Snapchat over the weekend after she didn’t make the varsity squad. In an 8-1 majority opinion in Mahanoy School District v. B.L., Justice Stephen Breyer stated, “The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy.”
Mahanoy’s ruling was narrow. The Court held that while public schools may have a special interest in regulating some off-campus speech, the school’s interest in this case wasn’t enough to override the student’s free speech interest. Here, the student Snapchatted with a private circle of friends while off campus outside of school hours, and her post didn’t contain specific threats or abuse targeting a member of the school community.
Still, the decision raises many new questions for schools, educators, and administrators who need to balance the “nurseries of democracy” with their practical interest in ensuring that the school environment is safe and healthy for their students, whose off-campus activities often spill into their relationships on campus.
For instance, while the Court’s ruling in Mahanoy didn’t involve sex-based harassment, Title IX practitioners may wonder in particular how Mahanoy might apply in such cases. With so much communication passing back and forth between students via social media or text, to what extent can—and should—schools regulate online sex-based harassment? And how do schools address virtual sexual misconduct without infringing on a student’s right to free speech?
What free speech protections do students have under Title IX?
Ever since the Obama Administration issued the 2011 OCR Dear Colleague letter declaring sexual violence a form of sex discrimination, public debate around Title IX—a federal civil rights law prohibiting sex-based discrimination in any school or educational program that receives federal funding—has primarily focused on sexual harassment and assault at schools and college campuses.
Under the Trump Administration, OCR rescinded Obama-era Title IX guidelines and issued new Title IX regulations in 2020, emphasizing greater due process protections for individuals accused of sexual harassment. Furthermore, the new regulations explicitly affirmed that nothing under Title IX should restrict any First Amendment rights. The Department of Education’s summary of the new regulations reminded schools and colleges that Title IX “provides First Amendment protections appropriate for educational institutions where students are learning, and employees are teaching. Students, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.”
In theory, then, Title IX shouldn’t restrict any speech that is protected under the First Amendment. In practice, however, the line is less clear-cut. An educational institution’s obligation to respond to allegations of sexual harassment is weighed differently under Title IX, under other laws and policies, and by the courts. Understanding how to proceed with an allegation while avoiding infringing on a student’s free speech rights can be a tricky balancing act, especially after Mahanoy.
Applying the SPOO test under Title IX
So, what happens if Student A sends Student B sexually harassing messages via text or on Snapchat? If Student B receiving the messages makes a complaint, can your school do anything to address or stop it from happening again?
The answer is unclear. Under the current Title IX regulations, such conduct needs to meet the definition of sexual harassment as unwelcome conduct that is so “severe, pervasive, and objectively offensive” (SPOO) that it denies a student equal access to an educational program or activity.
If it’s one Snap, it’s highly unlikely. In an earlier Dear Colleague letter from 2003, OCR clarified that “the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment.”
But how many Snaps are “pervasive”? How does one determine how “severe” and “objectively offensive” a text is? And what does it mean to deny a student access to education? What’s more, the current regulations restrict a school’s jurisdiction under Title IX to contexts where the school exercises “substantial control” over both the respondent and the harassment. While several abusive direct messages between students in a Zoom class leading one of the students to drop out of class might meet these criteria, it’s unlikely that a few texts between students would—especially if all the communication takes place off campus.
What do the courts say?
Of course, Title IX isn’t the only law that addresses sexual harassment in schools and colleges. Under Title VII of the 1964 Civil Rights Act, a broader “severe or pervasive” standard (compared with Title IX’s “severe and pervasive”) is used to determine a hostile environment in the workplace. And schools can—and should—have their own misconduct policies in place to address issues including sex-based misconduct that fall outside the limited jurisdiction of schools under the current Title IX regulations.
To make things more complicated, courts have offered differing perspectives on a school’s liability for off-campus misconduct.
Outside the Title IX context, the Supreme Court articulated in Tinker v. Des Moines Independent Community School District that public school officials can only punish students for on-campus speech if the speech would “materially and substantially” disrupt school activities.
The Court’s recent decision in Mahanoy didn’t extend the “substantial disruption” test to off-campus or online speech, nor address whether the analysis would have been different if the student had targeted a person based on a protected class.
However, federal courts in several jurisdictions, following a key Supreme Court decision in Davis v. Monroe County Board of Education, have ruled that schools may in fact be held liable under Title IX for failing to address student-on-student sexual harassment off-campus if such failure causes further harassment, or even vulnerability to harassment. In June, the Biden Department of Justice submitted a statement of interest in a Title IX-related case agreeing with this view. In the brief, the DOJ argued that alleged victims of sexual harassment may sue their school if the school’s lack of response to their complaint made them vulnerable to potential future harassment, even if they are never harassed again.
Indeed, the Biden Administration is strongly signaling a return to the Obama-era approach to Title IX, which will likely raise new debates around protections for off-campus speech.
In the recent landmark case Bostock v. Clayton County, the Supreme Court held that discrimination against “sex” under Title VII is not limited to biological sex, but also includes gender identity and sexual orientation. While the outgoing Trump Administration issued an OCR memo on January 8 this year arguing that Bostock does not apply to Title IX, President Biden almost immediately issued an Executive Order on January 20 reversing Trump’s policy and directing all federal agencies to implement Bostock, including in Title IX.
The Biden Administration’s redefinition of sex under Title IX as including gender identity and sexual orientation—thus potentially including anti-LGBTQ+ speech under sex-based harassment—opens up a whole new set of questions for schools and colleges as they grapple with the limits of regulating student speech in a virtual world.
Key takeaways for Title IX and off-campus speech
There is clearly continuing tension among the laws and court decisions when it comes to a school or college’s responsibility to address sexual harassment in off-campus speech, though the Mahanoy decision serves as a caution to schools who wish to do so.
If you are wondering how the recent Supreme Court decision in Mahanoy might affect your institution, note that the decision limits, but does not abolish, a K-12 school’s ability to discipline student speech off-campus. (Also note that the decision does not apply to higher education institutions.) And while the Biden Administration intends to rescind the current Title IX regulations and issue new regulations that includes protections for individuals based on sexual orientation and gender identity that may implicate off-campus speech, the 2020 Title IX regulations aren’t going anywhere soon.
Therefore, it’s important to make sure that your institution’s sex-based misconduct and free speech-related policies and procedures remain compliant with the current Title IX regulations, and that your appropriate personnel are fully trained in Title IX and First Amendment issues. If your institution has questions about the potential impact of Mahanoy or the intersection of Title IX and the First Amendment, please consult with legal counsel.
Jenny Lee is an educator, Title IX administrator, and a student at Loyola University Chicago School of Law and wrote this blog as part of the Education Law Practicum.
