March 3, 2021
LANSING – Michigan Attorney General Dana Nessel joined a coalition of attorneys general in filing a friend-of-the-court brief urging the Supreme Court to preserve schools’ ability to address cyberbullying and other forms of off-campus bullying that substantially affects students’ education.
The coalition filed the brief in Mahanoy Area School District v. B.L., a case concerning the ability of schools to hold students accountable for off-campus speech, and does not support either party. Because of public schools’ obligation to protect students and promote learning, the Supreme Court has long given them more leeway to regulate student speech under the First Amendment than states have regarding adults’ speech. But the lower court in this case ruled that schools may never regulate students’ off-campus speech.
In their brief, the attorneys general urge the court to reject this rule, arguing that it would undermine state anti-bullying laws and prevent schools from addressing in-person and online bullying that originates off-campus. Instead, the coalition encourages the court to uphold an existing legal standard, which empowers schools to regulate speech that substantially disrupts school or interferes with other students’ ability to learn.
“Regardless of where it originates, bullying can have serious, long-lasting consequences on students and hinder their ability to learn,” Nessel said. “Education offers a wealth of opportunities for students, and we must make every effort to provide the world’s future leaders with the support they need to prepare for the challenges they will face. Schools must also have the ability to use every tool at their disposal to protect those students, and that’s why my colleagues and I urge the court to preserve their abilities to address this issue.”
In Tinker v. Des Moines Independent Community School District, a landmark 1969 decision, the Supreme Court affirmed that students have First Amendment rights in public school settings but also recognized that school officials may regulate student speech that would “materially and substantially disrupt the work and discipline of the school” or interfere with the rights of other students. Every federal appellate court in the country, except the Third Circuit in the case now before the Supreme Court, has applied the Tinker standard to student speech that causes substantial disruption or harm at school, regardless of where the speech originates.
Bullying is a harmful and disruptive form of student behavior—often involving speech—that public schools across the country prohibit. Bullying can take many forms, including physical violence, threats, offensive insults or mocking. It can also take the form of indirect aggression, such as spreading false or harmful rumors or distributing embarrassing images of a targeted student. All 50 states have passed school anti-bullying laws, including laws requiring schools to establish anti-bullying policies and implement procedures to investigate and respond to bullying. More than two-thirds of these laws cover some bullying that occurs or originates off-campus, and most state anti-bullying laws incorporate Tinker’s standard of disruption to the school environment to determine when schools have authority to act.
In their amicus brief filed in Mahanoy Area School District v. B.L., the attorneys general do not take a position on the underlying facts of the case. Instead, they urge the court to treat students’ off-campus speech like any other students’ speech, allowing schools to regulate it when it has substantial effects on the school or other students’ learning, because:
Joining Attorney General Nessel in filing this brief are the attorneys general of California, Colorado, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.