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  1. VI. TTYL: THE FUTURE OF OFF-CAMPUS STUDENT CYBERSPEECH AND NEED FOR SUPREME COURT GUIDANCE

VI. TTYL: THE FUTURE OF OFF-CAMPUS STUDENT CYBERSPEECH AND NEED FOR SUPREME COURT GUIDANCE

With conflicting resolutions among schools and courts alike, it is essential that the Supreme Court address this issue.205Currently, both school officials and students are uncertain of how to navigate off-campus social media speech.206 This lack of clarity opens the door for schools to inconsistently target, discipline, or silence specific groups.207 For example, in an Alabama school district, twelve out of the fourteen students expelled due to social media posts were students of color, despite the fact that over sixty percent of the town’s population is white.208 If the Supreme Court clarifies the standard for off-campus cyberspeech, this would assist groups like the expelled Alabama students can raise constitutional challenges to schools’ application of speech restrictions.

Luckily, there is a chance that the Supreme Court could address this issue.209 On August 28, 2020, the Mahanoy Area School District filed Petition for a writ of certiorari.210 Given the increasingly important role that the internet and social media play in students’ daily lives, there is hope that the Supreme Court will hear the case.211 However, in 2016, the de-

205. See Calve, supra note 22, at 401–04 (warning that without clear guidance, schools may draft policies encroaching upon rights guaranteed by the Constitution); Goodno,* supra* note 29, at 657 (“There is no Supreme Court case squarely on point. The split in the lower courts’ decisions shows that the law is ambiguous.” (footnote omitted)).

206 See Calve, supra note 22, at 401 (noting that “[b]ecause ‘lower courts have not spoken with a unified voice’ on the issue of off-campus speech, schools and students are both left without clues as to how to proceed within the law” (footnote omitted) (quoting Martha McCarthy, Cyberbullying Laws and First Amendment Rulings: Can They Be Reconciled?, 83 MISS. L.J. 805, 806 (2014))).

207 See *Vera Eidelman & Sarah Hinger, *Some Schools Need a Lesson on Students’ Free Speech Rights, ACLU (Sept. 18, 2018, 5:15 PM) [https://perma.cc/4D8UENYN] (stating “experience shows that discipline for student expression is not always applied evenhandedly”).

208See id. (explaining “one student was expelled for wearing a sweatshirt depicting her murdered father, and another was expelled for posting a photo of himself ‘holding too much money’”); Sharada Jambulapati, Story From the Field: Children of Color Pushed Out of Alabama Schools Over Social Media Posts, S. POVERTY L. CTR. (July 9, 2015), https://www.splcenter.org/news/2015/07/09/story-field-children-color-pushed-out-alabama-schools-over-social-media-posts-0 (adding that African-American students represent seventy-eight percent of the school district’s expulsions). The school district hired a consulting firm to monitor students’ social media posts and, in turn, expelled a disproportionate amount of students of color. Eidelman & Hinger, supra note 207.

209. See Petition for Writ of Certiorari, Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 2020 WL 5234951 (2007) (No. 20-255).

210 *Id. *

211. See Anderson & Jiang, supra note 5 (acknowledging ninety-five percent of teens have or have access to a smartphone); see also American Academy of Child and Adolescent Psychiatry, supra note 6 (noting seventy-five percent of teens have one or more active social media profiles). Following the COVID-19 pandemic, the internet became more important than ever before. See Barack, supra note 8. For

fendant in the Fifth Circuit’s Bell opinion petitioned for a writ of certiorari to the Supreme Court, which was denied.212

Until the Court addresses the issue of off-campus cyberspeech speech, schools should tread carefully if punishing students for off-campus cyberspeech in light of the Third Circuit’s holding in B.L. Because the Third Circuit concluded the Tinker exception does not extend to off-campus electronic speech, it is unlikely that a court in its jurisdiction would uphold intervention.213 Even school policies prohibiting certain kinds of online speech are virtually unenforceable if the speech occurs off campus and is unrelated to a school-sponsored activity.214

Despite the inability to punish students for off-campus cyberspeech, cyberbullying and online harassment are still pressing concerns for schools.215 While B.L. greatly limits how schools can retroactively address social media misuse, schools can at least focus on strengthening preventative measures.216 For instance, integrating lessons about cyberbullying and its effects into the academic curriculum can teach students how to behave appropriately while online.217More broadly, schools should ensure they are fostering an inclusive and tolerant environment so students will be encouraged to treat one another with respect while on social media.218 These proactive measures will not erase all incidents of cyberbully

instance, students now rely on the internet to take class and interact with friends. Id.

212. See Bell v. Itawamba Cty. Sch. Bd., 136 S. Ct. 1166 (2016) (denying certiorari); see also Shaver, supra note 28, at 1588 (describing Court’s denial as missed opportunity that left schools without clear guidance).

213. See B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 186 (3d Cir. 2020) (setting the precedent “that Tinker does not apply to off-campus speech”).

214. See id. at 192–94 (finding that B.L. did not waive free speech rights by signing school and team rules). For a discussion of the school policies B.L. agreed to, see supra note 96 and accompanying text.

215. See Anderson, supra note 3 (emphasizing prevalence of cyberbullying amongst teens); see also Barack, supra note 8 (noting that in the COVID-19 era, it is “impractical” for parents and schools to reduce cyberbullying by encouraging students to take time away from their devices).

216. See Ludmila Battista, Cyberbullying: What is it and How to Prevent it?, PURDUE GLOBAL (May 24, 2012), https://www.purdueglobal.edu/blog/psychology/ what-is-cyberbullying-how-to-prevent/ [https://perma.cc/MJ7G-B6NL].

217. See id. (noting that “[a] lot of kids may not even consider cyberbullying as bullying until they fully understand how it can affect the other person”). Stephen Balkam, Chief Executive Officer of the Family Online Safety Institute in Washington, D.C., suggests that schools recognize that internet is a significant part of students’ lives and teach them how to use it appropriately. See Adams, supra note 156 (urging educators to teach students how to properly use technology). He urged that “[t]eachers should not limit the discussion to computer class or Internet safety day [and that they] should bring it up in any capacity, in any instance, in any classroom.” Id.

218. * See* Battista, supra note 216 (“There are steps that schools can take to address the issue of cyberbullying, and first and foremost is to promote a culture of mutual respect and a tolerance or appreciation for diversity.”).

ing, but they can at least reduce the number of occurrences.219 Absent intervention, these proactive measures are the most effective way for schools to protect students from the dangers of social media misuse.220

219. See id. (“Educating children about the possible negative effects of posting personal information online and providing training about how to remove personal information that shouldn’t be online can alleviate opportunities for cyberbullying attacks.”); see also id. (explaining that “[t]aking the time to teach cyber ethics, involving school counselors when necessary, and addressing and resolving reports of cyberbullying quickly and immediately can make it less likely for repeated incidents.” (citing Grace Shangkuan Koo, Bullying Can Ruin Children’s Lives, PHILIPPINE DAILY INQUIRER (Aug. 21, 2011), https://newsinfo.inquirer.net/45425/bullyingcan-ruin-children%E2%80%99s-lives [https://perma.cc/FES4-HHMZ])).

220. See Adams, supra note 156 (noting that educators can be a “powerful force in promoting a climate of respect”); see also Battista, supra note 216 (concluding that parents and schools must partner to combat cyberbullying incidents).

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