An Evolving Understanding of Acting In Loco Parentis: Students’ Rights in the Age of Social Media

The issue of students’ rights has been central to many Supreme Court cases in the past, with decisions in favor both of students’ freedoms and of schools’ rights to regulate their students.  With the recent decision of Mahanoy Area School District v. B.L. [1], in which the Supreme Court decided in favor of high school student B.L. 's right to express profane frustration against her school on a private online forum, one important question arises: how will the Supreme Court continue to decide cases involving students’ rights in this age of social media?  In these cases, the Supreme Court should deem any and all language made by students outside of the physical and digital school space to be protected in their right to free expression.  Otherwise, there is a risk of dangerous overreaches of power on the part of schools.

The Facts of the Case

In this case, the Supreme Court judged whether a public school had the authority to suspend B.L., a high school student who remains anonymous, when she used profane language about the school’s cheerleading team in a post to her Snapchat “friends” while off-campus after school.  The Court ultimately decided Mahanoy in the favor of B.L., a student who remains anonymous, citing the fact that this specific situation is one in which the school does not act in loco parentis (i.e., the school acts in the place of the parent), and that B.L.'s language did not significantly disrupt school instruction so as to be subject to disciplinary action.  Three important factors were considered in this decision: 1) the nature of B.L.’s language, 2) the setting in which it took place, and 3) the platform through which it was shared.  Citing the difficulty of determining the limit of schools’ sovereignty over students’ speech when it comes to the Internet, the Court deemed it inappropriate to “now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech.”  They left for future decisions the specifications for “whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community” [2].  This leaves to future cases the difficult task of determining when students’ online speech becomes grounds for discipline by their school.  Though Mahanoy is the first U.S. Supreme Court case to deal with this question, many precedents have been set based on students’ rights separate from the Internet.

Relevant Case Precedents

The decision made in Mahanoy was built on a history of relevant students’ right cases.  The Court cited Tinker v. Des Moines (1969), which held that students had the right to wear armbands as a form of symbolic speech, one that could not be restricted by the school system [3].  In Tinker, the Court emphasized the fact that this form of speech was not disruptive to the school and that students have fundamental rights outlined by the First Amendment.  The Court also cited Hazelwood School District v. Kuhlmeier (1988), the Court upheld a public school’s right to censor what is contained in a school publication that is considered part of the school’s curriculum, or an example of “school-sponsored expressive activities” [4].  Furthermore, Bethel School District v. Fraser (1986) concluded that the school could restrict a student’s speech given during school that contained sexual innuendo that the school deemed to be inappropriate for the audience of fellow students [5].  In Morse v. Frederick (2007), the Court upheld a school administrator’s right to censor a student’s speech that promoted illegal drug use (on a banner) while on a school-sponsored trip.  In the three latter cases, the court showcased limits on the students’ rights outlined by Tinker [6].  In Kuhlmeier, students’ speech as part of the school curriculum, could be censored when not deemed appropriate to share with other students as approved by the school.  In Fraser, a student was not allowed to use lewd or offensive language in a speech given to other students during school.  In Morse, students’ speech when promoting illegal drug use while on a school-sponsored trip was also limited.  In all these cases, both the type of language and the setting in which the speech took place were relevant to the Court’s decision.  With Mahanoy, an added question of online platform, or digital location, must be considered in what a student posted.

The Concept of In Loco Parentis

In these cases concerning students’ rights, one common issue is the question of the school’s relationship with its students, and to what extent it has a right to restrict their speech and behavior.  The Court has determined that the school may, in some cases, act in loco parentis, or as the role of a parent.  This occurs, as outlined by summary of previous Supreme Court cases, when on school grounds, at a school-sponsored outing, and when participating in a school-sponsored activity.  However, in Mahanoy, this argument is unfounded — as the Court points out, “there is no reason to believe B.L.’s parents had delegated to school officials their own control of B.L.’s behavior at the cocoa hut,” the off-campus location of her Snapchat post [7].

Not only is in loco parentis irrelevant to Mahanoy, it should also be considered irrelevant to any and all cases of students’ online speech when the physical and/or digital location is not relevant to the school.  If the speech in question occurs outside of school (or school-sponsored activities), outside of school hours, and off of any school-sponsored online forum, the question of the type of language used by the student should be considered moot.  If the Court decides that the school can limit a student’s online language when not connected to the school by location, the reach of schools on students’ rights becomes increasingly totalitarian. 

A student’s language in private online forums cannot be controlled by the school, no matter the nature of the speech in question.  Schools should not have jurisdiction over these matters where the parents can monitor and control their children’s speech.  In the case of a real threat perceived by a student’s online posts, the school or concerned party must go through the legal authorities.  If we allow schools to act in loco parentis in these scenarios outside of school-related activities, we allow them a gross overreach of control of student expression.  Students must be able to voice their opinions, whether lewd, offensive, or critical, and parents must retain the power to mitigate what their children say online.

One possible argument for the restriction of students’ online speech by schools is if something said would disrupt learning.  However, in this case a student’s online presence should be treated as any other online information or opinion that may disrupt school.  For example, a large news story or local scandal may cause an uproar within school, interrupting learning.  However, the school has no power to censor this online occurrence, and should likewise not be allowed to censor a student’s speech outside of school online.

Conclusion

In sum, when students engage in free expression on the Internet outside of school, school-sponsored activities, and school-sponsored forums, they act as parties completely outside of their school.  Though they may be penalized for incendiary language through private means, the relevance of their speech to the school’s educational mission is immaterial, and therefore outside the school’s jurisdiction.  If the Supreme Court fails to make this distinction, it risks allowing the school to enter all aspects of students’ lives, becoming all-encompassing in its restrictive abilities and providing the opportunity for abuse of this power.

References

[1] “Mahanoy Area School District v. B. L., 594 U.S. ___ (2021),” Justia Law, accessed October 10, 2021.

[2] “Mahanoy Area School District v. B. L., 594 U.S. ___ (2021).”

[3] “Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969),” Justia Law, accessed October 10, 2021.

[4] “Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988),” Justia Law, accessed October 10, 2021.

[5] “Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986),” Justia Law, accessed October 10, 2021.

[6] “Morse v. Frederick, 551 U.S. 393 (2007),” Justia Law, accessed October 10, 2021.

[7] “Mahanoy Area School District v. B. L., 594 U.S. ___ (2021).”