Claim of Unconstitutional School Discipline for Snapchat Among Friends Can Go Forward

From Judge Franklin Valderrama (N.D. Ill.) in C.B. v. Bd. of Ed. of Minooka Community High School Dist. 111, decided last month but just posted on Westlaw:

Plaintiff is a public high school student who alleges she was unconstitutionally disciplined by her high school for sending a private Snapchat message while off-campus to fellow-student (G.G.), which stated in reference to another student (D.E.), “cant even spell in english. leave. go back to wherever u came from.”

The Court granted Defendants’ motion to dismiss Plaintiff’s First Amendment Freedom of Speech claim, finding that schools are permitted to regulate off-campus student speech where the speech in question threatens a concrete and substantial disruption, because, as alleged, those circumstances were present here. Order. Plaintiff now moves the Court to reconsider that decision, arguing that the Court did not fully appreciate that the message was not sent directly to the student to which it referred, that it was only sent because the other student had disparaged veterans, and that the Court assumed certain facts not alleged in the FAC [First Amended Complaint]. For the reasons stated below, Plaintiff’s motion for reconsideration is granted….

First, as Defendants point out, the Court was clear in its Order that it understood that Plaintiff alleged that she sent the message at issue privately to G.G., not to D.E. Further, when the Court noted that Plaintiff’s speech involved a “second-person” “direct command,” it was because the message was, in fact, a command in the second-person—”leave,” “go back to wherever u came from”—in which Plaintiff alleged she was referring to D.E. Finally, the “delivery to and direct impact on D.E.” referenced the Plaintiff’s allegations that D.E. in fact learned of the message and reported it to the school.

The Court found that taking the Plaintiff’s allegations as true, the message risked causing—if not actually caused—substantial disruption at the school. To the extent that Plaintiff argues that the Court assumed facts not in the FAC, the Court agrees. The Court found the Plaintiff pled a substantial disruption, but a substantial disruption was not pled in the Complaint.

The Supreme Court in Mahanoy Area Sch. Dist. v. B.L. (2021) outlined “three specific categories of student speech that schools may regulate in certain circumstances: (1) ‘indecent,’ ‘lewd,’ or ‘vulgar’ speech uttered during a school assembly on school grounds”; “(2) speech, uttered during a class trip, that promotes ‘illegal drug use’ “; and “(3) speech that others may reasonably perceive as ‘bear[ing] the imprimatur of the school,’ such as that appearing in a school-sponsored newspaper.”

The Supreme Court, however, acknowledged that in some circumstances, off-campus speech still falls under the school’s interest. These situations include: “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

Importantly, the Supreme Court did not “set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and 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.”

But the Supreme Court did provide some guidance. “First, a school, in relation to off-campus speech, will rarely stand in loco parentis…. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Second, “courts must be more skeptical of a school’s efforts to regulate off-campus speech,” and “the school will have a heavy burden to justify intervention” in off-campus religious or political speech. “Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.”

It then stated: “these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.” All this to say, Mahanoy describes an extremely fact-intensive test.

In the Court’s order on Defendants’ motion to dismiss, the Court focused on the final instance where a school can regulate speech, that is, “speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’” But, because this is a fact-intensive inquiry, dismissal at the motion to dismiss stage was improper. At the motion to dismiss stage, Plaintiff is entitled to all reasonable inferences. Whether there is evidence of a serious disruption was not before the Court. That is why the majority of these cases are resolved at summary judgment, or a preliminary injunction, not a motion to dismiss. Here, the complaint alleges no reasonable forecast of substantial disruption or actual disruption.

Indeed, Plaintiff alleged she sent a private, off-campus message, which she explicitly instructed the recipient not to share with anyone. Determining whether this falls into the bucket of off-campus speech which schools can regulate will require a fully developed factual record. The Court also cannot find at this stage that one message, sent privately to a different individual, constitutes the “serious or severe bullying or harassment targeting particular individuals” that Mahanoy held could be regulated….

Douglas B. Harper represents plaintiff.

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