Tales Out of School: Delineating Student Speech Protections for the Digital Age

The way students communicate has also changed greatly over the last generation, but in the first two decades of 21st Century, the U.S. Supreme Court had yet to answers questions about the extent of power for school administrators to control off-campus speech on digital technologies. Then in the case of Mahanoy Area School District v. B.L (2021) the U.S. Supreme Court finally answered this question by holding that administrators do have the ability to control off-campus speech. The Court did give some specific scenarios in which administrators had power to regulate off-campus, but it did not give a bright-line rule. As a result, the Court may have muddied the waters even more by expanding the authority of school administrators in a cultural environment where politics and education will only continue to mix.

This article provides a more precise test for student speech cases that can be applied in various contexts. First, the article reviews the decision in Mahanoy v. BL. Next, the article outlines student speech precedent at the U.S. Supreme Court. Finally, the article forwards a new constitutional test by using the student speech precedent and drawing a parallel to the public employee speech test.