V. PUTTING A FILTER ON SPEECH

V. PUTTING A FILTER ON SPEECH: WHY IT IS SOMETIMES NECESSARY FOR SCHOOLS TO REGULATE OFF-CAMPUS STUDENT CYBERSPEECH

V. PUTTING A FILTER ON SPEECH: WHY IT IS SOMETIMES NECESSARY FOR SCHOOLS TO REGULATE OFF-CAMPUS STUDENT CYBERSPEECH

While the outcome of B.L. is just, rejecting the Tinker exception in offcampus student speech cases raises concerns moving forward.¹⁴³ Under a more extreme, nuanced set of facts, this holding may bar schools from regulating cyberspeech that materially and substantially disrupts the school environment and is harmful to students—solely because it happened off campus.¹⁴⁴ In order to conform with the Tinker’s intent and progeny to maintain a safe school environment, the Fourth Circuit’s sufficient nexus test offers a solution to the issue that conforms with Tinker. ¹⁴⁵

A. Giving Tinker a Much-Needed Update: Why Supreme Court Precedent Supports Extending the Tinker Exception to Off-Campus Cyberspeech

To maintain a safe school environment, the Fourth Circuit’s sufficient nexus test provides the best analytical framework.¹⁴⁶ Although the Supreme Court has made clear that students retain their First Amendment rights in school, Tinker and its progeny also place a limit on those rights.¹⁴⁷ In those cases, the Supreme Court recognized that under some circumstances, it is appropriate for schools to regulate student speech.¹⁴⁸

¹⁴³. See id. at 195 (explaining that the majority provided no guidance regarding how to apply its holding in future cases and that “there are no facts before [the court] to draw a clear and administrable line for this new rule”).

¹⁴⁴. See Marcus-Toll, supra note 59, at 3419 (arguing limiting school authority over speech that only occurs on campus is illogical given the nature and reach of technology).

¹⁴⁵. See Jiles, supra note 60, at 662–63 (asserting “sufficient nexus test is the most adequate test to use in balancing the student’s privacy interests guaranteed Tinker and the interest of the school district in deterring any future disruptions on campus”).

¹⁴⁶. See Smith-Butler, supra note 13, at 301–02 (“A literal reading of Tinker reflects that schools can regulate or discipline student speech that occurs off-campus if it has an on-campus impact that either causes a substantial disruption with the school’s work, is reasonably foreseeable that it will cause a substantial disruption with the school’s work, or it collides with the rights of others.”).

¹⁴⁷. See Morse v. Frederick, 551 U.S. 393, 408 (2007) (finding schools may regulate student speech promoting illegal drug use given that it conflicts with schools’ goal of discouraging illegal drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988) (noting that school officials may regulate expression associated with academic curriculum in order to tailor it to the maturity of students); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (determining it appropriate for a school district to regulate vulgar student expression); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969) (holding a school may regulate student speech if the speech creates material and substantial disruption).

¹⁴⁸. See Fraser, 478 U.S. at 682 (explaining First Amendment rights of public school students are not the same as rights of adults). Additionally, this demonstrates that since Tinker, the Supreme Court has been comfortable with adding additional restrictions to student’s First Amendment rights given the facts of the situation. See Shaver, supra note 28, at 1582. Thus, as our society continues to change, it is possible that the Court would be comfortable adding another exception to student speech rights. See id.

In Fraser, for example, Justice Burger noted that “simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, [it does not follow that] the same latitude must be permitted for children in public school.”¹⁴⁹

Tinker should evolve with the times by extending to off-campus speech because its exceptions promote a safe and orderly environment in school.¹⁵⁰ If speech impedes on the rights of other students, while simultaneously disrupting normal school activity, schools can regulate speech.¹⁵¹ This comports with the Supreme Court’s recognition that students have more limited First Amendment rights while in school.¹⁵² But those cases dealt with issues of school-sponsored speech and did not consider the future impact of electronic communication and the prevalence of social media.¹⁵³ As compared to fifty years ago, the rise of electronic communication has led to less emphasis on where the speech occurs; separating off-campus speech from on-campus speech is no longer clear.¹⁵⁴ Online communication is constant, readily accessible, permanent, and quickly circulated.¹⁵⁵ The fast-paced, widespread nature of social media speech enters and impacts the school environment even more easily than traditional forms of expression.¹⁵⁶ Thus, to preserve the intent behind

¹⁴⁹ Fraser, 478 U.S. at 682 (comparing First Amendment rights of students to the First Amendment rights of general adult citizens); see Smith-Butler, supra note 13, at 298 (explaining students’ First Amendment rights are not absolute).

¹⁵⁰. See Tinker, 393 U.S. at 507 (acknowledging that schools need authority to “prescribe and control conduct in the schools”); see also Shaver, supra note 28, at 1589–90 (noting Court’s intent that Tinker stay relevant).

¹⁵¹. See Morse, 551 U.S. at 397 (holding “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use”); Tinker, 393 U.S. at 513 (explaining schools can regulate speech that causes a material and substantial disruption and collides with the rights of others); see also Smith-Butler, supra note 13, at 302 (proposing that focusing on whether the off-campus speech collides with the rights of others can help schools determine when it is constitutionally permissible to intervene).

¹⁵². Tinker, 393 U.S. at 507 (acknowledging that although students have First Amendment rights, schools need to authority to create and enforce rules in order to maintain an appropriate environment).

¹⁵³. See Shaver, supra note 28, at 1589 (noting Tinker “was decided in an age where students did not harass or bully each other electronically”).

¹⁵⁴. See Marcus-Toll, supra note 59, at 3418 (“The increasingly easy transmission and accessibility of digital speech pose significant problems for the territorybased approach to school regulation of student speech under Tinker.”); see also Shaver, supra note 28, at 1541 (describing task of creating a geographic boundary as “unworkable given the reach of digital speech”).

¹⁵⁵. See Marcus-Toll, supra note 59, at 3419 (describing cyberspeech as “uniquely pervasive and accessible”); see also Goodno, supra note 29, at 660 (explaining cyberbullying spreads easily being that “[i]nternet links and text messages can easily be forwarded to numerous people with the click of a button”).

¹⁵⁶. See Barry P. McDonald, Regulating Student Cyberspeech, 77 MO. L. REV 727, 746 (2012) (highlighting that “cyberspace knows no geographic boundaries and cybercommunications are much more pervasive, enduring and easy to engage in than communications in the ‘physical’ world”). Even though cyberbullying may only occur outside of school, school is so integral to students’ lives that the impact

Tinker and ensure a safe, secure school environment, the Tinker exception must apply to off-campus student social media speech.¹⁵⁷

Despite the difficulty in drawing a distinction between on- and offcampus speech, there remains a compelling argument that student social media speech falls within the school’s authority.¹⁵⁸ The Supreme Court in Tinker noted:

[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior— materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.¹⁵⁹

While schools must respect students’ First Amendment rights, they also must have the ability to address off-campus cyberbullying that causes a substantial disruption in the school building or impedes a student’s right to school safety.¹⁶⁰

is often felt there. See Caralee Adams, Cyberbullying: What Teachers and Schools Can Do, SCHOLASTIC, https://www.scholastic.com/teachers/articles/teaching-content/ cyberbullying-what-teachers-and-schools-can-do/ [https://perma.cc/FC6B-Y67Z] (last visited Sept. 29, 2020) (explaining that even though cyberbullying often occurs off campus, “the fallout is often seen at school and can interfere with the educational environment”). Nancy Willard, Director of the Center for Safe and Responsible Internet Use, explained that “Monday is the new Friday . . . . It used to be that hurtful interactions built up over the week and could blow up on Friday. Now when kids go back to school on Monday, they are upset because of what happened over the weekend.” Id. (internal quotation marks omitted).

¹⁵⁷. See Shaver, supra note 28, at 1589–90 (recognizing that although Tinker was decided before digital age, its intent to protect students from “bullying or harassing speech” extends to cyberspeech).

¹⁵⁸. See McDonald, supra note 156, at 745 (explaining that student cyberbullying typically arises from school relationships). In all likelihood, physical off-campus bullying does not fall within the school’s authority. Id. What distinguishes off campus cyberbullying from off campus physical bullying is that “cyberspace knows no geographic boundaries . . . . [It] has an ‘everywhere’ and ‘all the time’ quality which bullying that occurs in the physical world generally lacks.” Id. at 746. Additionally, because cyberbullying can occur anonymously, a bully is more likely to be even harsher than they would be face-to-face. See Jiles, supra note 60, at 646.

¹⁵⁹. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (emphasis added) (reading the Constitution to allow regulation of “speech-connected activities in carefully restricted circumstances”). While the “substantial disruption” test often gets significant attention from courts, the “collides with the rights of others” portion is key, as it can assist school officials when they are in situations where the speech is troubling but does not rise to the level of a substantial disruption. See Smith-Butler, supra note 13, at 302. Speech that is troubling— yet may not rise to the substantial disruption standard—could be speech that is “bullying, harassing, libelous, or threatening” or has to do with “cruelty, racism, sexism.” Id. at 302, 303.

¹⁶⁰. See Smith-Butler, supra note 13, at 303 (“Schools want to protect student political speech rights yet also allow schools the flexibility to cope with cruelty, racism, sexism, libel, or threats that other types of student speech create.”); see also Adams, supra note 156 (explaining that cyberbullying is now a “school climate and safety issue”).

Furthermore, the geographical origin of the cyberspeech means means much less today than it did when the Supreme Court decided Tinker. ¹⁶¹ Thus, the majority in B.L. may have focused too much on location rather than the speech’s effects within the school community.¹⁶² Now, students can constantly contact one another while off campus.¹⁶³ The majority of contacts students make are with their peers.¹⁶⁴ In all likelihood, these students follow one another on social media, based on their preexisting relationships from school.¹⁶⁵ What a student posts, messages, or shares online can be viewed or commented on by their peers, extending their interactions beyond the school building.¹⁶⁶ For these reasons, online content easily makes its way into the school building through students who virtually bring it through the school’s doors.¹⁶⁷ Forcing schools to abide by the strict geographic location of where the speech began seems immaterial when the speech significantly impacts the school’s most important group: the students.¹⁶⁸

In addition to Supreme Court precedent, public policy supports extending the Tinker exception to off-campus social media speech. In B.L., the Third Circuit logically found that B.L.’s speech was protected because the snap did not cause harm to anyone.169 Even if the court applied the Tinker exception to the case, it is likely that the First Amendment would have still protected B.L.’s speech because it did not create the requisite

¹⁶¹. See Marcus-Toll, supra note 59, at 3419 (arguing that today, determining whether speech occurred on or off campus can be an “arbitrary exercise”).

¹⁶². See Shaver, supra note 28, at 1541 (asserting that given the pervasiveness of social media, it is “unworkable” for courts to limit school authority based on geography).

¹⁶³. See Anderson & Jiang, supra note 5 (finding forty-five percent of teens are online almost constantly).

¹⁶⁴. * See* McDonald, supra note 156, at 745 (noting that “cyberbullying arises out of relationships or events under the supervision and control of school officials”).

¹⁶⁵. See id. (“[W]hen cyberbullying arises out of relationships or events under the supervision and control of school officials . . . it is occurring because of the students’ identities qua students rather than in their role as general citizens . . . .”).

¹⁶⁶. See Anderson & Jiang, supra note 5 (noting the internet is one significant way teens communicate and maintain relationships with one another); see also Mendola, supra note 16, at 158 (explaining students use technology for schoolrelated communication).

¹⁶⁷ See Marcus-Toll, supra note 59, at 3419.

¹⁶⁸. See McDonald, supra note 156, at 732 (noting impossibility of cyberspeech occurring entirely on or off campus). For instance, the bully may send the victim a threatening message via social media while on campus, or the victim may receive the threatening message on campus. See id. Moreover, the initial bullying could originate on campus and continue off campus. *See id. *

¹⁶⁹ B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 190 (3d Cir. 2020).

“substantial disruption.”¹⁷⁰ The Third Circuit’s majority opinion is concerning not because it chose to protect B.L.’s speech, but rather because of the precedent it sets for future cases, where the cyberspeech is more vulgar or violent.¹⁷¹

School officials have a legitimate interest in regulating certain kinds of off-campus online speech for two reasons.¹⁷² First, schools do not merely teach students subjects like math, history, and science.¹⁷³ Rather, schools also take on an inherent responsibility to teach social etiquette.¹⁷⁴ To show students how to appropriately engage and communicate with others, it is important for school officials to be able to regulate inappropriate forms of cyberspeech.¹⁷⁵ Doing so sets an example for students by signifying that the school neither tolerates nor ignores inappropriate or harmful speech.¹⁷⁶

¹⁷⁰. Id. at 197 (Ambro, J., concurring) (arguing *Tinker *“no doubt works here to rule in B.L.’s favor”).

¹⁷¹. See id. at 193–94 (questioning how the majority’s holding will apply to a more difficult set of facts, such as an instance of “off-campus racially tinged student speech”).

¹⁷². See McDonald, supra note 156, at 745 (explaining connection between off-campus cyberbullying and the school and advocated for school speech rules to address these situations). [W]hen cyberbullying arises out of relationships or events under the supervision and control of school officials, and in this sense we can say that it is occurring because of the students’ identities qua students rather than in their roles as general citizens, it would seem legitimate for the school to apply appropriate function-sensitive student speech rules to such an incident . . . . Id.

¹⁷³. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.”); see also Smith-Butler, supra note 13, at 302–03 (“The school’s goal is to teach students civil discourse and debate while protecting their rights to debate contentious issues.”).

¹⁷⁴. See Fraser, 478 U.S. at 681 (“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”). An important aspect of civil discourse involves being respectful of others.* See id. *

¹⁷⁵. See id. at 683 (noting that school officials are role models to students and “demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class”). Teachers and coaches are also in positions where they can identify if a child is being bullied or is a bully. See Effects of Bullying on Mental Health, supra note 16. If these individuals can promptly identify and address bullying and mental health concerns, it “can help prevent harmful negative experiences and keep children and youth moving forward in a positive trajectory. . . .” Id.

¹⁷⁶. See Fraser, 478 U.S. at 683 (reasoning that “schools must teach by example the shared values of a civilized social order “); Smith-Butler, supra note 13, at 304 (noting that schools must balance students’ First Amendment rights while also “providing a safe school environment that neither permits, condones, or ignores student bullying or harassment.”).

Second, cyberbullying and hate speech have a severe impact on students’ mental health and the school environment.¹⁷⁷ Whether the speech occurred in person, at school, or online over social media should not be relevant when the ultimate impact is on the student and their educational experience.¹⁷⁸ If schools stand by and say nothing when a student is bullied online, then the bully is less likely to stop, and will continue to subject the victim to this negative behavior.¹⁷⁹ Furthermore, a student might feel distracted in school, or avoid school completely, after being bullied online by peers.¹⁸⁰ While schools must demonstrate respect for students’ First Amendment rights, they also must maintain an appropriate and comfortable environment for students.¹⁸¹ The characteristics of the school environment permit a school to regulate off-campus social media behavior that causes harm to others.¹⁸²

¹⁷⁷. See Smith-Butler, supra note 13, at 291 (explaining bullying has serious physical and psychological health impacts); see also Facts About Bullying, STOPBULLYING.GOV, https://www.stopbullying.gov/resources/facts [https://perma.cc/3SXH8SAM] (last updated Aug. 12, 2020) (stating research indicates bullying can lead to “feelings of isolation, rejection, exclusion, and despair, as well as depression and anxiety, which can contribute to suicidal behavior”). The negative impact of cyberbullying can extend to bystanders and the bullies themselves. See Effects of Bullying on Mental Health, supra note 16 (noting bystanders may experience increased anxiety and depression while bullies are at higher risk for antisocial behavior).

¹⁷⁸. See Smith-Butler, supra note 13, at 303 (“[T]he schools must also provide a safe environment in which students can thrive and learn without being subjected to harassment, bullying, libel, or threats”); see also Sherri Gordon, The Real-Life Effects of Cyberbullying on Children, VERYWELLFAMILY (July 10, 2020), https://www.very wellfamily.com/what-are-the-effects-of-cyberbullying-460558 [https://perma.cc/ LW8W-PWLW] (noting victims may “experience some unique consequences and negative feelings”). Victims of cyberbullying can “experience anxiety, . . . . depression, . . . low self-esteem, . . . and struggle academically.” Id.

¹⁷⁹. See Fraser, 478 U.S. at 685 (noting First Amendment does not prohibit schools from regulating speech that “would undermine the school’s basic educational mission.”); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (noting that school officials serve as “the trustees of the student body’s wellbeing”).

¹⁸⁰. See e.g., Justin W. Patchin, Millions of Students Skip School Each Year Because of Bullying, CYBERBULLYING RES. CTR. (Jan. 3, 2017), https://cyberbullying.org/millions-students-skip-school-year-bullying [https://perma.cc/EP9Q-8M2M] (estimating that 5,400,000 students skip school every year due to bullying). A survey of 2,750,000 students showed that roughly 300,000 stayed home “many times” as a result of online bullying. Id. Moreover, of students who are cyberbullied, only 56.8% reported that they felt safe in school. See id. Comparatively, of students who are neither bullied in person nor online, 95.4% reported that they felt safe in school.* See id.*

¹⁸¹. See Smith-Butler, supra note 13, at 303 (emphasizing schools’ responsibility to provide students with a safe learning environment). Students’ First Amendment rights are important, but the existence of this right does not mean that schools must ignore off-campus bullying or harassment. See id. at 304.

¹⁸². See Fraser, 478 U.S. at 682–83 (“Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.”); see also Shaver, supra note 28, at 1547. While adults have significant latitude when expressing their viewpoints, students are not afforded the same

C. Precedent and Policy Support Subscribing to the Sufficient Nexus Test

Overall, the Fourth Circuit’s sufficient nexus test best conforms with Supreme Court precedent and public policy.¹⁸³ This test strikes an appropriate balance between students’ First Amendment rights and the necessity of maintaining an appropriate, safe school environment.¹⁸⁴ Speech such as B.L.’s snap would remain protected, while schools would be permitted to regulate more dangerous forms of cyberspeech.¹⁸⁵

The sufficient nexus test strikes a balance between First Amendment concerns and protecting student well-being because it considers the school’s task to educate, the mental health of students, and whether the speech will cause a substantial disruption in the school.¹⁸⁶ If these factors demonstrate that the cyberspeech is sufficiently connected to these three interests for schools, the Tinker exception will apply and allow the school to intervene if the speech is likely to create a substantial disruption.¹⁸⁷ Importantly, the test does not consider where the speech originated, avoiding the impossible task of determining whether the electronic speech occurred on or off campus.¹⁸⁸

Although the majority in B.L. declined to apply the sufficient nexus test, its reasons for failing to do so are unpersuasive.¹⁸⁹ The majority’s

freedom while in school. Shaver, supra note 28, at 1546 (quoting Fraser, 478 U.S. at 682). Rather, schools balance a student’s right to express “unpopular and controversial views” with their interest in teaching students how to appropriately engage in public discourse. *Id. *

¹⁸³. For a discussion of the Fourth Circuit’s sufficient nexus test, see supra notes 72–79 and accompanying text.

¹⁸⁴. See Goodno, supra note 29, at 697 app. B (explaining under the sufficient nexus test, speech can come into the school’s jurisdiction when “there is a sufficient nexus between the electronic communication and the school which includes, but is not limited to, speech that is directed at a school-specific audience, or the speech was brought onto or accessed on the school campus, even if it was not the student in question who did so”).

¹⁸⁵. See B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 197 (3d Cir. 2020) (Ambro, J., concurring) (arguing B.L’s speech would be upheld under Tinker). Although B.L.’s snap offended and concerned some students, it did not rise to the level of a substantial disruption nor did it impede upon the rights of others. See id. at 195.

¹⁸⁶. See Marcus-Toll, supra note 59, at 3425–26 (explaining sufficient nexus test focuses on “the school’s educational mission and duty to its students”).

¹⁸⁷. See *McDonald, *supra note 156, at 737 (explaining that a sufficient nexus between the speech and these interests “might include the fact that a speaker could foresee that her speech could ‘reach the school or impact the school environment’”) (quoting Kowalski v. Berkeley Cty. Sch., 62 F.3d 565, 573 (4th Cir. 2011)). One relevant factor to determine if there is a sufficient nexus between the speech and the school’s interests is whether a speaker could foresee the speech “reach[ing] or impact[ing] the school environment.” See id. (internal quotation marks omitted) (quoting Kowalski, 62 F.3d at 573).

¹⁸⁸. See Kowalski, 652 F.3d at 573 (declining to determine whether speech occurred on or off campus because there was a strong nexus between speech and school’s interests).

¹⁸⁹. For a more detailed summary of the Third Circuit’s concerns with the sufficient nexus test, see supra notes 123–27 and accompanying text.

first reason for rejection was its concerns over a slippery slope, allowing schools to regulate other less threatening kinds of online speech.¹⁹⁰ But the sufficient nexus test does not give schools an infinite ability to punish students for any kind of speech.¹⁹¹ Before a school regulates student speech, the test requires that the school to establish a legitimate connection between the speech and school’s interest in providing an appropriate learning environment.¹⁹² Also, under the Tinker exception, a school must demonstrate the likelihood that the speech would create a substantial disruption in the school.¹⁹³

The majority in B.L. also rejected the sufficient nexus test because it felt that the test placed too much speech within the school’s authority.¹⁹⁴ It is true that this test gives a school significant authority over speech.¹⁹⁵ However, a major part of a school’s role is to maintain a safe learning environment for students.¹⁹⁶ When one student is making another student feel uncomfortable or unsafe, school officials are in one of the best positions to resolve the problem.¹⁹⁷

Finally, the majority opinion was concerned that the sufficient nexus test fails to provide clarity or predictability in future outcomes.¹⁹⁸ While the sufficient nexus test may not provide a bright-line rule, that is the na-

¹⁹⁰. B.L., 964 F.3d at 188 (expressing concern that sufficient nexus test provides school officials with power that can be taken advantage of).

¹⁹¹. See Goodno, supra note 29, at 666 (noting that by incorporating sufficient nexus language into a school policy, schools are likely protected from challenges that policies are overbroad); see also Jiles, supra note 60, at 664 (explaining sufficient nexus test is a preliminary test to determine whether the Tinker exception applies).

¹⁹². See Kowalski, 652 F.3d at 573 (noting that the school’s “pedagogical interests” must be sufficiently connected to speech to “justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being”). By requiring schools to establish this relationship before moving to the Tinker analysis, this step adds an additional burden on schools and ensures they do not have limitless authority. See Jiles, supra note 60, at 666. It imposes a strict standard that ensures schools are not able to regulate* any* speech that is related to the school and just speech that is “so related to the pedagogical interest of the school, to warrant regulation.” Id. at 666.

¹⁹³. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (noting regulation of student speech requires school to identify potential disruptions of activities).

¹⁹⁴. B.L., 964 F.3d at 188.

¹⁹⁵. See Morse v. Frederick, 551 U.S. 393, 419 (2007) (noting “courts [have] routinely deferred to schools’ authority to make rules and to discipline students for violating those rules”).

¹⁹⁶. See Smith-Butler, supra note 13, at 302–03 (explaining schools have an obligation to guard against forms of bullying, threats, and inter-student discrimination).

¹⁹⁷. See Effects of Bullying on Mental Health, supra note 16 (explaining coaches and teachers can identify and address peer to peer bullying).

¹⁹⁸. B.L., 964 F.3d at 188 (stating sufficient nexus test “leav[es] students to wonder what types of speech might implicate a school’s ‘pedagogical interests’” (quoting Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 573 (4th Cir. 2011))).

ture of the issue at hand.¹⁹⁹These cases are fact-dependent, and it is counterintuitive to have a clear and rigid rule.²⁰⁰ Regardless, it is unlikely students will not understand what speech is protected versus what speech is punishable.²⁰¹ Thus, the sufficient nexus test provides a flexible approach for complex fact patterns.

Additionally, the majority did not explain how declining to apply the Tinker exception in any circumstance created more clarity than the sufficient nexus test.²⁰² The opinion tells us that schools can never intervene but fails to address what should happen under a set of facts which are less clear-cut than those in B.L.²⁰³ A blanket statement that the Tinker exception does not extend to off-campus cyberspeech creates more confusion than the sufficient nexus test because it does not allow courts and schools to act logically and flexibly based on the circumstances.²⁰⁴

¹⁹⁹. See Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 396 (5th Cir. 2015) (declining to adopt any rigid rule because “such determinations are heavily influenced by the facts in each matter”); see also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (“[T]he school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.”).

²⁰⁰ See B.L., 964 F.3d at 197 (Ambro, J., concurring) (explaining that fully declining to apply the Tinker exception to off-campus speech cases is illogical). Emphasizing the difficulties and highly factual nature of these cases, Judge Ambro wrote, “[t]he bottom line is that Circuit Courts facing harder and closer calls have stayed their hand and declined to rule categorically that Tinker does not apply to off-campus speech.” *Id. *

²⁰¹. See Jiles, supra note 60, at 666 (explaining under sufficient nexus test, cyberbullying between students almost certainly falls under school’s authority). For instance, posting online about religious or political beliefs will generally fall under protected speech given that it does not target other students. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969) (explaining that in order to regulate student speech, school officials “must be able to show . . . more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”). Alternatively, given that cyberbullying directly impacts the victim’s academic experience, that speech will typically fall within the school’s discretion. See Jiles, *supra *note 60, at 666–67.

²⁰². See B.L., 964 F.3d at 197 (Ambro, J., concurring) (expressing concern that categorical rule will create more confusion).

²⁰³. See id. *at 195 (noting majority provides no guidance regarding how the decision will apply to future cases where off-campus cyberspeech threatens or harasses others in school community). The majority recognized that it is not facing a case where the off-campus speech directly harassed or threatened students or teachers. *See id. at 190. Still, it disagreed with courts that have applied the Tinker exception to instances of threatening or harassing off-campus cyberspeech. Id. Despite disagreeing, the Third Circuit offered no insight into how its holding in B.L. would apply under those circumstances. See id. Instead, the court wrote that the “opinion takes no position on schools’ bottom-line power to discipline speech in that category” and merely acknowledged that its holding diminishes schools’ abilities to regulate some speech. Id. at 190–91.

²⁰⁴. See Kowalski, 652 F.3d at 575 (illustrating that in order to provide a secure environment, schools need to be able to exercise discretion when it comes to discipling students).