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March 2, 2021


Raoul, Coalition Urges Supreme Court to Permit Schools to Address Harmful Off-Campus Speech that Substantially Disrupts School or Interferes with Students’ Learning

Chicago —Attorney General Kwame Raoul, as part of a coalition of 24 attorneys general, filed 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 affect students’ educations. Raoul and the coalition filed the brief in Mahanoy Area School District v. B.L., a case concerning schools’ ability to hold students accountable for off-campus speech. 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. However, the lower court in this case ruled that schools may never take disciplinary action against students when they engage in disruptive speech off-campus.

In their amicus brief, Raoul and the attorneys general urge the court to reject this ruling, 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 that empowers schools to regulate speech that substantially disrupts school or interferes with other students’ ability to learn.

“Bullying in any form, whether at school or off school grounds, significantly interferes with a student’s ability to learn and achieve,” Raoul said. “While this is not a new problem, technology makes it more difficult for students to escape bullying, and this has been compounded during COVID as students are relying on technology for learning and socializing. The court should continue to allow schools to be able to hold students accountable for disruptive speech, regardless of where it takes place.”

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 3rd 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.

In their amicus brief filed today, Raoul and 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 student speech, allowing schools to regulate it when it has substantial effects on the school or other students’ learning, because:

  • Schools have a duty to provide a high-quality education to all students: Millions of school children experience bullying each year, and it oftentimes harms their ability to learn. In addition to making students feel unsafe at school, bullying has been shown to lower both short- and long-term academic performance of victims and perpetrators.
  • The line between on- and off-campus has been blurred by technology: Technology, electronic communications and social media allow students to remain connected to their school communities even outside of school hours and when they are not physically present at school. During the COVID-19 pandemic, virtual learning and socializing has further blurred the line between which student speech should be considered on-campus and which should be considered off-campus.
  • Cyberbullying is a growing problem: Technology has created new opportunities for bullying to occur, and a growing number of school-aged children report being bullied by other students online, on their cell phones or on other electronic media. One recent survey found that 59% of teenagers in the United States have personally experienced cyberbullying at some point in their lives.
  • Bullying can become disruptive at school regardless of where it originates: Regardless of when and where it occurs, bullying can create a school climate in which student victims feel unsafe and unable to engage in learning. For example, children who are cyberbullied are more likely to report missing school because they feel unsafe at school or when traveling to or from school.
  • Students will lose critical protections from cyberbullying: The laws of 35 states and the District of Columbia require or permit schools to regulate cyberbullying that occurs off campus, on non-school devices and on non-school online platforms. Students would lose these important protections if the court limits schools’ power to regulate off-campus speech.

Joining Raoul in filing the brief are the attorneys general of California, Colorado, Delaware, the District of Columbia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.


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