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August 04, 2021

Annual 2021: Social media and First Amendment rights of students explored

A recent U.S. Supreme Court decision in support of public school students’ free expression outside of the school will be discussed online at the CLE Showcase Program “Beyond the Schoolhouse Gate: Student Speech Rights After Mahanoy School District v. B.L.,”  at the 2021 ABA Hybrid Annual Meeting at 10 a.m. CDT on Thursday, Aug. 5.

“The Supreme Court in its most recent ruling … left a lot unsettled and this panel will have a really diverse set of views on what happens next,” said Stephen Wermiel, professor at American University Washington College of Law and moderator of the program.

The panel will include the perspective of school administrators, law professors and Mary Beth Tinker, the lead plaintiff in the landmark 1969 ruling, Tinker v. Des Moines Independent School District, which defined First Amendment rights of students in U.S. public schools.

Panelist Francisco Negron, chief legal officer of the National School Boards Association in Alexandria, Va., whose organization represents 3,300 school lawyers and more than 94,000 school board members across the county, said schools know that they have a responsibility and expectation not only for parents and students, but under state law they have to protect students from bullying and harassment.

“We recognize that speech oftentimes happens outside of school on social media platforms,” he said. “And this decision is quite clear that the schools have a continuing role in addressing that speech in order to protect children, so we’re happy for that.”

Negron said the ruling clarifies the applicability of the Tinker standard.

“We have been waiting for a decision like this in the school community because there was a measure of uncertainty,” he said. “What the Court said in this case, even though it ruled against the school district, the Court said there is a legitimate space for schools to regulate objective speech, particularly when you’re talking about speech that might be harmful to kids like bullying and harassment.”

Although the ruling points to some “limitations” on the regulation of student speech outside of school, at least school officials now have further guidance regarding the parameters of speech, Negron said.

From his perspective that’s an important qualification for the Supreme Court to have made, but Negron noted that other panelists will have more to say about how far it goes in terms of regulating student speech outside the school.

 “This case represents sort of the confluence of all of these interesting pieces of the way that students communicate -- that we all communicate -- in the modern world, in the contemporary world. For that reason alone it will be an interesting conversation,” Negron added.

Wermiel and Negron will be joined by Ben Holden, professor at the University of Illinois College of Media; Mary-Rose Papandrea, professor at the University of North Carolina School of Law; and Mary Beth Tinker, American activist and lead plaintiff in the 1969 case Tinker v. Des Moines Independent School District.

The program is sponsored by the Section of Civil Rights & Social Justice; Litigation Section;  Government and Public Sector Lawyers Division, Standing Committee On Public Education and the Division of Public Education.