In June 2021, the Supreme Court ruled in Mahoney Area School District v. B.L. that a female student could not be suspended from her cheerleading squad for criticizing her school on social media. As Justice Stephen Breyer wrote in his majority opinion: “While public schools may have a special interest in regulating some off-campus student speech…the school itself has an interest in protecting the student’s unpopular expression… because America’s public schools are the nurseries of democracy.”
Mahoney v. B.L. is not the first case in which the Supreme Court has made a ruling in favor of a student’s right to free speech. Other landmark cases, like Tinker v. Des Moines (1969) and Bethel v. Fraser (1986), speak to the ongoing tension between freedom of speech and disciplinary action in schools.
Particularly today, with pandemic-era remote schooling and the evolution of social media, schools may be at risk of errors and omissions (E&O) claims if they overstep the line where their authority ends, and parental authority begins.
Protecting freedom of speech in schools is a complex challenge, and each situation that arises is unique. Here are four steps school administrators can take to mitigate risk and maintain a safe learning environment.
1. Have a clear, up-to-date student code of conduct.
The best form of protection against an E&O claim is a clear and up-to-date policy that highlights acceptable and unacceptable student actions. To ensure your policy stays within the law, it’s best to develop it in collaboration with legal counsel. The policy should include what kinds of student speech are unacceptable—for example, students should not be allowed to bully or make threats against other students. It should also clearly define what constitutes each type of “unacceptable” speech and whether it’s relevant on social media and in other online spaces.
Your code of conduct should also detail the disciplinary actions that the school will take if students don’t adhere to the policy—and how the authority of the school changes if an action takes place off school grounds or outside of school hours.
2. Make your policy publicly accessible.
Everyone in your school community—including students, teachers, parents, staff, and volunteers—should know what the code of conduct says and how it will be enforced. Teachers and staff should also be trained on the proper procedure if a student breaks the rules. Schools should have clear documentation of how they have communicated the policy to all community stakeholders, and what training has been delivered to ensure it is followed appropriately. Consider posting the policy on the school’s public website, so parents and community members can access it easily. Administrators should also have systems in place to address questions or concerns about the policy.
3. Enforce the policy.
After your policy has been shared with the school community, it needs to be enforced. This is often where schools fall short—policies collect dust in the back of a filing cabinet or are left unread in a student orientation manual. School leaders should enforce the policy consistently and evaluate how each disciplinary action aligns with the code of conduct. For school districts, this might mean putting procedures in place for principals and other administrators to train regularly on the current policies and report on their enforcement. Assigning a qualified staff member to chair or manage this task is one helpful way to ensure that training occurs on a regular basis.
4. Adjust the student code of conduct as needed.
School culture is constantly evolving, and the code of conduct needs to evolve with it.
Administrators should re-evaluate policies every year to ensure they align with recent court decisions and continue to protect students, teachers, and families. Some schools even rely on subscription services, like those provided by state school board associations, NEOLA or the National Association of Independent Schools (NAIS), to keep their policies up to date. Remember: whether your policy is written in-house or through a subscription service, you should always have legal counsel review the document before it is enacted.
Protecting the leaders of tomorrow
Students have a right to express themselves—and schools have a responsibility to keep students safe. As technology further blurs the lines between school and home, administrators need to be proactive about protecting their student body and ensuring all students have a safe place to learn, grow, and speak their minds.
Liberty Mutual has been supporting public entities for more than 50 years with specialized underwriting, claims, service, and risk control teams. To learn more about how we can help your school navigate evolving educational and government risks, go to https://business.libertymutual.com/industries/public-entities/.
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