Our Education & Public Policy Law attorneys give an update of cases decided applying trending legal issues. In recent years, two areas of significant development have been in the areas of (1) the First Amendment protections of students; and (2) issues involving transgender individuals. In this article, we will delve into two of the key cases that impact these areas and discuss how they can be practically applied within your school setting.
The First Amendment and Off-Campus Social Media In 2021, the Supreme Court in Mahanoy v. B.L. held that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome [the student]’s interest in free expression in this case.” The facts of Mahanoy tell us that expressing frustration with the school for not being selected for the school’s varsity cheer squad and posting on Snapchat with explicit language about the school does not place the student within the jurisdiction of the school for discipline. However, the court goes on to say that the special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Let’s explore those situations.
Circumstances Implicating a School’s Regulatory Interests In Chen v. Albany Unified School District the 9th Circuit applied the Mahanoy factors and weighed: (1) the likelihood of harm to the school; (2) whether it was reasonably foreseeable that the online speech would reach and impact the school; and (3) whether the content of the speech required the school to protect students within the school setting. In this case, two students created and interacted with a private Instagram account that posted racist remarks and insults towards fellow students. The students were suspended and later sued the school alleging that their First Amendment rights were violated. In weighing the factors, the court decided that disciplining the students for this off-campus speech was not a violation of their First Amendment rights. The court laid out situations that would give the school an interest that is more important than the First Amendment interests of the student. These situations include severe bullying and harassment, threats aimed at teachers or other students, and the failure to follow rules concerning cheating or breaches of school security devices.
Case Law Regarding Transgender Students Because the Supreme Court has yet to accept review of a transgender student case, our guiding law in Indiana comes from the 7th Circuit Court of Appeals. In 2017, the 7th Circuit Court of Appeals heard the case of Whitaker v. Kenosha Unified School District No. 1 Board of Education. The case involved a transgender student who was denied access to the boys’ restroom at his high school in Wisconsin. The 7th Circuit ultimately ruled in favor of Whitaker and the decision was significant in that it established that transgender students have a right to access restrooms that align with their gender identity and that denying such access is a violation of their rights under Title IX and the Equal Protection Clause of the Fourteenth Amendment.
However, Adams v. School Board of St. Johns County sets precedent in the 11th Circuit that contradicts our 7th Circuit guiding law as explained above. In this case, the full panel of the Court of Appeals ruled in favor of the school and found that their bathroom policy which denied access to the boys’ restroom was not a violation of Title IX nor the Equal Protection Clause.
Circuit Split A circuit split refers to a situation where different federal appellate courts have issued conflicting rulings on the same legal issue. The case law regarding transgender students could be RIPE for Supreme Court intervention. The need for clarity, consistency, and uniformity in the interpretation and application of federal law, as well as the significance of the Supreme Court’s role in resolving legal disputes and interpreting the Constitution may inspire the Court to give us a single standard for everyone to follow.
Navigating state and federal regulations can be challenging. For more information, contact the KGR Education Law and Public Policy team.
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