“This Note will examine the impact that the nationwide shift to online distance learning due to the pandemic has had on K12 public school students’ First Amendment speech rights. I will begin with the four foundational Supreme Court cases about on-campus student speech. Next, I will briefly examine the federal circuit split regarding off-campus student speech. Finally, I will examine Mahanoy itself, both in the Supreme Court and the lower courts.
After laying this foundation, I will discuss how online distance learning complicates the theoretical framework of the onand off-campus divide that the federal circuit courts have created and that the Supreme Court has not disturbed. I will discuss online learning during the pandemic and provide hypotheticals to illustrate the challenge of drawing a strict line between activity that occurs on-campus, as opposed to offcampus, when the classroom is a child’s bedroom or other location in the home. I will also briefly discuss cyberbullying, a public health crisis that affects one in six high school students per year, and note that Tinker is likely not the correct vehicle to address this crisis.
I concede that in the brave new world of nationwide online education, the on- and off-campus framework has become challenging to define. Nevertheless, I argue that courts must commit to rigorously separating on- and off-campus speech. Tinker is the best existing defense of student speech rights. To remain faithful to the precedent of Tinker, and the underlying message that schools are not meant to be totalitarian, surveillance chambers, I argue that courts must only regulate speech that occurs on-campus, based on the modern understanding of what it means to be on-campus. Once the modern schoolhouse gates have been located, off-campus speech must not be touched by school officials.
The pandemic has forced us, as a society, to reckon with many different logical cracks. Schooling has been a source of stress and difficulty for students and their families just as much as it has been for faculty and administrators. However, schoolchildren should not suffer a permanent abridgment of their rights due to this pandemic and its aftermath. If public school is to remain a place of open, accessible education, then students must be generally free to express themselves, to the extent that the First Amendment allows, without fear of discipline.”
To read this Note, please click here: “F*ck School”? Reconceptualizing Student Speech Rights in the Digital Age.