Limited – Not Eliminated: The “Middle” Ground of Off-Campus Student Speech
By
By
Kristopher L. Caudle[1]*
Abstract
In a previous article, On-Campus or Off-Campus – That is Still the Question, the author argued that the Supreme Court failed to adequately address modern student speech issues in Mahanoy Area School District v. B.L. ex rel. Levy and that under Justice Alito’s concurrence in Mahanoy, “off-campus” speech must now be viewed along a “spectrum.” On one end of the spectrum, student speech occurring in traditional “on-campus” settings, or certain settings that are “tantamount” to the “on-campus” environment, are still subject to regulation under the Tinker doctrine. On the opposite end of the spectrum, regulation of speech rendered outside the traditional on-campus environment, published through social media applications, addressing matters of public concern, even if “crude” or distasteful—is limited.
Along this new “digital frontier,” Mahanoy left behind a “middle” ground on the off-campus student speech spectrum—“targeted” forms of “serious or severe bullying or harassment.” A look into this terrain reveals a new First Amendment paradigm in 2026—while regulation into off-campus speech was limited by Mahanoy—in the middle ground, it was not eliminated.
This article analyzes differing circuit court approaches that have emerged for the middle ground since Mahanoy, as well as the doctrinal problems they create for the First Amendment. This article also examines why the regulatory scope of federal laws, like Title IX of the Education Amendments of 1972, must be carefully balanced because of new executive orders and wider policy shifts by the Department of Education in 2025. This article concludes with a new framework for analyzing off-campus student speech issues, as well as a comment on the impact of social media in the administration of public education.
A. Pre-Mahanoy Student Speech Cases 231
B. Mahanoy Area School District v. B.L. ex rel. Levy: A Shift Towards the “Middle” 235
III. The Regulation of Bullying & Harassing Student Speech 238
A. The Regulation of Harassment Under Federal Law 239
1. Disability-Related Harassment 241
B. The Regulation of Bullying Under State Law 244
IV. Plowing New Terrain in the Middle Ground 246
A. Doe v. Hopkinton Public Schools: First Circuit 246
B. CI.G. v. Siegried: Tenth Circuit 248
C. Chen ex rel. Chen v. Albany Unified School District: Ninth Circuit 249
D. Kutchinski v. Freeland Community School District: Sixth Circuit 252
V. Where Tinker Continues to Linger in Off-Campus Student Speech for the Middle Ground 255
A. Circuit Court Approaches to Off-Campus Speech in the Middle Ground. 255
1. “Invasion of Rights” – The First Circuit’s Singular Approach 256
2. “Substantial Disruption” & its Permutations – Tenth, Ninth and Sixth Circuit Approaches 258
3. The Extension of Fraser and Hazelwood 261
B. Balancing Bullying and Harassment Laws in Off-Campus Student Speech 263
1. The Impact of Social Media 263
2. The Role of Institutional Policy & Regulatory Jurisdiction 266
VI. A Post-Mahanoy Framework for Analyzing Off-Campus Student Speech in the Middle Ground 267
A. Question One: Is the Off-Campus Speech Considered “Harassment” Under Federal Law? 267
B. Question Two: Is the Off-Campus Speech Considered “Bullying” Under State Law? 269
Without much fanfare, a Spanish teacher in Malvern, Pennsylvania did what so many Americans have done over the past decade—she created a TikTok account.[2] However, when the middle school teacher opened TikTok for the first time, she saw what another co-worker had already seen—a fake profile impersonating her online.[3] One of the fake posts included a “real photo” of the Spanish teacher on vacation at “the beach with her husband and their young children,” with a salacious caption—“Do you like to touch kids? Answer: Sí.”[4]
As the story in Malvern unfolded, the situation became more dire. At least twenty other teachers at the same middle school learned that they too had become victims of “impostor accounts” created on TikTok.[5] To their surprise, the perpetrators weren’t cybercriminals, or online hackers—they were a group of their own eighth grade students.[6] While some of the imposter accounts were “benign” in nature, many more were “rife” with “disparaging, lewd, racist and homophobic” comments targeting teachers and their family members.[7]
By the time school administrators became aware of the incident, hundreds of students had already viewed or commented on the imposter accounts online.[8] Although some of the students claimed the posts were just a “joke,” an “undercurrent conversation” about the teachers began to circulate around the school.[9] Even seasoned teachers felt “kicked in the stomach,” with their professional reputations tarnished, and the privacy of their families intimately violated.[10] Following a school-level investigation, several students were “briefly suspended” for their online conduct.[11] However, the school district’s superintendent “wish[ed]” that he “could do more” to discipline culpable students, but believed his options were “legally limited” because the posts occurred “off-campus during nonschool hours on personal devices.”[12]
Malvern is just another episode in a disturbing trend of “off-campus” student speech incidents since 2021,[13] when the United States Supreme Court issued its opinion in Mahanoy Area School District v. B.L. ex rel. Levy.[14] Mahanoy was a much-anticipated case involving the online rant of Bridget Levy—a student-athlete relegated to the junior varsity cheerleading squad at her high school.[15] Amid her “frustrat[ion]” with the outcome of her school’s cheerleading tryouts,[16] Levy posted a now-infamous photo of her “middle fingers” raised with the caption: “Fuck school fuck softball fuck cheer fuck everything.”[17] Levy’s post was published to Snapchat[18] with her personal smartphone, at a local sundry store, “on her own time.”[19] Levy’s post ultimately made its way to her coach’s desk, and she was suspended from the junior varsity cheerleading team for violating rules prohibiting “profanity in conjunction with a school extracurricular activity.”[20] Levy’s case made it all the way to the United States Supreme Court, which ruled in her favor, holding that the type of speech at issue in her case was protected by the First Amendment.[21]
In the wake of Mahanoy, school officials, like the ones in Malvern, now proceed with “cautio[n]” when regulating off-campus student speech.[22] Student speech is typically viewed along a “spectrum.”[23] On one end of the spectrum, speech occurring in traditional “on-campus” locations, such as school buildings,[24] or in digital settings that are “tantamount” to the school building, like remote learning,[25] may still be regulated by school officials under the Supreme Court’s longstanding Tinker doctrine.[26] On the opposite end of the spectrum, regulation of “off-campus” speech, outside of the regular school day, posted through social media platforms, addressing matters of public concern, even if “crude” or distasteful, is limited.[27]
“Between these two extremes,” Mahanoy left behind a middle ground on the off-campus speech spectrum.[28] This “Middle Ground” encompasses one of the most difficult categories of speech that school officials encounter: “serious or severe bullying or harassment targeting particular individuals.”[29] Since 2021, several circuits have issued opinions interpreting Mahanoy within this evolving context.[30] A look into this terrain reveals a new First Amendment paradigm in 2026: while regulation into off-campus speech was limited by Mahanoy, in the Middle Ground, it was not eliminated.[31]
At the same time, Tinker does not exist in a vacuum. Alongside student free speech rights, public schools have “affirmative dut[ies]” to prohibit “bullying” and “harassment” under federal laws, including Title IX of the Education Amendments of 1972 (“Title IX”) and state anti-bullying statutes.[32] Within this domain, twenty-first century administrators face a labyrinth of conflicting laws, regulations, and policies, sprinkled into the free speech analysis.[33] Moreover, the debate continues to rage about whether regulation of student speech should extend beyond the “schoolhouse gate”[34] into the digital abyss that is social media.[35] In addition, determining “when certain speech crosses the line from merely offensive” speech, which is protected, to a “more severe” type of speech that must be addressed,[36] is one of the most difficult tasks facing school administrators today.[37] As a result, students are “los[ing] some First Amendment protections,”[38] stuck in a “panopticon,”[39] while administrators continue to navigate the limits of off-campus speech rights.[40] This reality chills speech and weakens the overall integrity of the Tinker doctrine as a tool for First Amendment jurisprudence.[41]
Since Mahanoy, one thing has become clear: “rampant social media use” is more than just a First Amendment issue; it is “threatening students’ education, well-being and physical safety.”[42] For many adolescents, social media has become a “dark alley” leading to “higher rates of depression, self-harm, and even suicide.”[43] Social media platforms “normalize anonymous aggressive posts at a level not seen in previous generations.”[44] The digital nature of social media accelerates this normative problem, by providing students with a readily accessible forum to “weaponize” speech against adults and fellow classmates.[45] Society is just beginning to understand the depths of this crisis—much less correct it.[46] Consequently, judges[47] and lawmakers from across the political aisle[48] are “call[ing] for new federal (and state) legislation” to address “student cell phone misuse.”[49]
This article reaches into the post-Mahanoy world of secondary student speech in the Middle Ground. Part II begins with a survey of the Tinker doctrine, as well as the majority and concurring opinions in Mahanoy. Part III looks beyond Tinker to identify key principles governing the Middle Ground under separate federal and state laws. Parts IV and V dig deeper to show where Tinker’s familiar framework continues to linger in the post-Mahanoy analysis. Specifically, Part IV and Section V.A analyze dueling off-campus approaches that have been crystallized since Mahanoy, as well as the doctrinal problems they create for the First Amendment. Section V.B builds on this foundation, to explain why federal harassment laws like Title IX and state anti-bullying statutes must be carefully balanced alongside Tinker and Mahanoy because of recent policy shifts by the United States Department of Education (“DOE”).[50] Part V argues that school districts and courts need a more comprehensive post-Mahanoy approach to manage the myriad legal issues the Middle Ground creates for the learning environment in 2026. Part VI proposes a new framework for the Middle Ground—one that fills the gap on the spectrum created by Justice Alito in Mahanoy, and balances competing rights in one matrix. Part VII concludes with a comment on the impact of social media in the administration of public education.
Part II begins with an overview of First Amendment principles applied by the United States Supreme Court in its secondary student speech cases. Section II.A provides a brief survey of classic speech cases decided prior to Mahanoy, while Section II.B looks at how Mahanoy’s majority and concurring opinions framed the off-campus speech inquiry for the Middle Ground.
The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.”[51] The enforcement of First Amendment rights is accessible to citizens vis-à-vis the states through the Fourteenth Amendment of the United States Constitution.[52]
During the twentieth century, the Supreme Court decided several constitutional cases arising in the public-school setting,[53] culminating with one of the Court’s biggest hits, Tinker v. Des Moines Independent Community School District.[54] In Tinker, three students wanted to express their disagreement with the Vietnam War by wearing black armbands to their high school building.[55] The school’s principal learned about the students’ plan and adopted a new policy prohibiting students from wearing expressive clothing (like armbands) during the school day.[56] The group wore the armbands to school anyway and were suspended by the principal under the new policy.[57] The students filed a First Amendment lawsuit challenging the school’s policy that ultimately reached the Supreme Court.[58] On appeal, the Court sided with the students,[59] and its holding became a landmark decision for free speech rights in the United States.[60]
Tinker’s message was simple: “students . . . [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[61] In the Court’s opinion, the “passive expression of opinion” displayed by the armbands did not interfere with “the school’s work or [collide] with the rights of other students to be secure and to be let alone.”[62] Rather, the principal’s limitation on speech was based on an “undifferentiated fear or apprehension of disturbance,” which was “not sufficient to overcome the right to freedom of expression.”[63] Any limitation on a student’s speech, the Court said, must be based on “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[64]
Tinker’s holding was practical: students have the freedom to speak, “even on controversial subjects,” in all manner of school activities.[65] However, “conduct by the student, in class or out of it . . . [that] materially disrupts classwork or involves substantial disorder or invasion of the rights of others” may still be disciplined by a public school district under the First Amendment.[66] Therefore, under Tinker, public schools can regulate a student’s speech if the speech is an (1) “invasion of the rights” of others, (“invasion of rights” test), or if it caused a (2) “material” and “substantial” disruption to the learning environment ( “substantial disruption” test).[67] Under either prong, a school’s rationale for the regulation must be based on more than an “undifferentiated fear or apprehension of disturbance,” or the “mere desire to avoid the discomfort and unpleasantness” of an “unpopular viewpoint.”[68] In either Tinker domain, the Court has made clear that the “special characteristics” of the school environment granted school officials certain “leeway” to discipline students for their speech within the confines of the public-school setting.[69]
In the decades that followed Tinker, the Supreme Court issued three more student speech opinions, forming what has become known as the Tinker doctrine.[70] In Bethel v. Fraser,[71] the Court addressed whether a high school student’s “pervasive sexual innuendo,” delivered during a school assembly, was protected by the First Amendment.[72] The Court held that Tinker did not apply to this category of speech because public schools had separate authority to discipline students for “lewd” or “indecent” speech rendered at school, [73] even though the concurrence found that the same type of speech was protected “outside of the school environment.”[74] In distinguishing Tinker, the Court reasoned that school officials could regulate the type of speech at issue in Fraser because they hold a unique position as “role models,” responsible for teaching “the shared values of a civilized social order” to school-age children.[75]
In Hazelwood School District v. Kuhlemeier,[76] the Court addressed the regulation of student speech by a principal in a school-sponsored, print newspaper.[77] In another break from Tinker, the Court held that public schools could regulate “school-sponsored expressive activities” that were “reasonably related to legitimate pedagogical concerns.”[78] Nothing in Tinker or Fraser, the Court said, required schools to “tolerate student speech” that was “inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.”[79] In rendering its decision, the Court also addressed the lower court’s analysis of Tinker’s “invasion of rights” prong.[80] Without deciding the issue, the Court noted that Tinker’s “invasion of rights” prong might be justified where student speech “could result in tort liability” for a school.[81]
Finally, in Morse v. Frederick, [82] the Court analyzed whether a high school could discipline a student for displaying a banner that read “BONG HiTS 4 JESUS” at a school event.[83] The Court held that “promoting illegal drug use” by a student at a school event was not protected speech under the First Amendment.[84] However, like Fraser and Hazelwood, Morse did not turn on the application of Tinker.[85] Rather, the Court’s rationale focused on the school’s “‘important . . . perhaps compelling’ interest” in “deterring drug use” among minor students.[86]
In 2021, the Supreme Court opened the Tinker doctrine to the information age in Mahanoy Area School District v. B.L. ex rel. Levy.[87] As discussed in Section II.A, the Supreme Court’s “patchwork”[88] of existing precedent had only ever addressed student speech rights within the context of a brick-and-mortar school building, during a traditional school day.[89] However, beginning in the late 2000s, Tinker was increasingly applied to online settings outside the school building, like the speech at issue in Mahanoy.[90] In this new digital context, Tinker came into question often, due to cyberbullying and the rapid growth of the internet at the turn of the millennium.[91] Over time, a circuit split of authority in off-campus student speech cases emerged.[92] When Mahanoy reached appellate review in 2020, the Third Circuit reflected on the circuit split, and attempted to define the “on-campus” versus “off-campus” distinction with precision.[93] In the process, the Third Circuit held that Levy’s speech—and all “off-campus” speech meeting its prescribed definition—were “categorically” prohibited from regulation by public schools.[94] The Supreme Court granted certiorari to review the Third Circuit’s opinion.[95]
In its decision, the Supreme Court affirmed the Third Circuit’s holding in favor of Levy but disclaimed the lower court’s “categorical” approach.[96] Unlike the Third Circuit, the majority did not believe that a school’s need to regulate student speech automatically “disappear[ed]” just because it “[took] place off campus.”[97] Still, the majority chose not to adopt a “bright-line”[98] or “broad, highly general rule” stating what “counts as ‘off campus’” speech, and the Court did not fully explain how Tinker should apply in the “off-campus” context.[99] However, it did acknowledge that a school’s “regulation” of off-campus speech—”remain[ed] significant” in some off-campus areas beyond the facts of Mahanoy—such as “serious or severe bullying or harassment targeting particular individuals.”[100] Still, the majority “hesitate[d]” to draw exact boundaries on this category of speech or prescribe how a student’s “age” or “impact upon the school itself” might inform the analysis.[101] Rather, the Court simply acknowledged “serious or severe bullying or harassment” may “call for . . . regulation” by school officials to comply with other areas of education law outside of Tinker.[102] Ultimately, the majority’s opinion held “little more than this:” a school’s regulation of off-campus speech, like the kind in Levy’s case, was “diminished.”[103]
In his concurring opinion, Justice Alito painted with a broader brush.[104] As discussed, he envisioned off-campus speech issues as part of a “spectrum.”[105] Along Justice Alito’s spectrum, like the majority, he too recognized that a school needed the “authority to protect everyone on its premises” and that schools must have the ability “to prohibit threatening and harassing speech” occurring within its programs and activities.[106] As Justice Alito put it, “severe bullying and harassment [are] serious (and age-old) problems” that have “given rise” to “the most litigation” in lower courts.[107] Despite his recognition of a problem, he conceded that “bullying and severe harassment” were amorphous concepts, “not easy to define with the precision required for a regulation of speech.”[108] Like the majority, he left for “future cases” to decide whether a “speaker’s off-campus location” made the “critical difference” in the First Amendment analysis.[109]
In a separate portion of Mahanoy, the majority briefly analyzed Levy’s off-campus speech in the wider context of Tinker’s “substantial disruption” test.[110] The Court intimated that “[m]any courts had taken” Tinker’s “substantial disruption” standard as one that allowed “considerable freedom . . . to discipline students for conduct that the First Amendment might otherwise protect.”[111] However, the type of “alleged disturbance” in Mahanoy, the majority said, was not the “sort of ‘substantial disruption’ of a school activity” or “a threatened harm to the rights of others that might justify the school’s action.”[112] For the first time, the Court referred to Tinker as a “demanding standard,” which it affirmed must be “caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[113]
In sum, Tinker remains an essential component of First Amendment jurisprudence for public secondary schools.[114] Tinker is still the anchor in student speech, while Fraser, Hazelwood, and Morse form pragmatic “exceptions” within the doctrine—where neither a “substantial disruption,” or “invasion of rights”—are required to comply with constitutional guarantees.[115] Then there is Mahanoy. Mahanoy retreated from adopting a “highly general” rule that would have defined the “on-campus” versus “off-campus” distinction with precision but “cautio[ned]” school officials not to venture too far into speech issues like Levy’s.[116] Like Hazelwood,[117] the Mahanoy majority did not critically examine Tinker’s “invasion of rights” prong and spent little time applying the “substantial disruption” test—although it framed the standard as a “demanding” one for future courts.[118] Justice Alito’s concurrence laid the foundation for an off-campus analysis, by creating a “spectrum” for courts to evaluate student speech.[119] The concurrence recognized a middle portion of the spectrum, however, both the majority and the concurrence left the mechanics of this category for another day.[120]
Accordingly, Part IV begins the dig into this new terrain by examining post-Mahanoy circuit court cases from the Middle Ground. But first, Part III unpacks the scope of the regulatory framework governing the Middle Ground beyond the First Amendment.
Outside the Tinker doctrine, secondary public schools have separate statutory duties to prohibit bullying and harassment in the learning environment.[121] Over the years, many scholars have addressed the complexity of bullying and harassment issues within the First Amendment student speech context.[122] Federal anti-discrimination statutes, along with state-based, anti-bullying laws, weave together to form a complex regulatory scheme applicable to American public-school districts;[123] however, none of these laws were critically analyzed in Mahanoy[124] and the DOE’s interpretation of Mahanoy within this area vacillated in 2025.[125] Therefore, Part III proceeds in two parts: Section A examines three federal anti-discrimination statutes that prohibit different forms of harassment in public schools; Section B then turns to a similar form of regulation for bullying under applicable state law.
Under federal law, all secondary public schools that receive “federal financial assistance” must prohibit “discrimination” based on certain categories within their “program[s] or activit[ies].”[126] Title VI of the Civil Rights Act of 1964 prohibits discrimination based on “race, color, or national origin.”[127] Title II of the Americans with Disabilities Act of 1992 and Section 504 of the Rehabilitation Act of 1974, (collectively, “Section 504”), work in tandem to prohibit discrimination based on disability.[128] Title IX prohibits discrimination based on “sex.”[129] Section II.A.1 outlines the general requirements relevant to student speech under federal law. Sections II.A.2-3 then address requirements that apply to two specific types of harassment – “disability-related harassment” under Section 504 and “sexual harassment” under Title IX.
Harassment is a form of discrimination prohibited under federal law.[130] Consistent with the First Amendment,[131] harassment must be addressed by public school districts, if the alleged conduct is based on one of the prohibited categories captured by the federal law set forth above and creates a “hostile environment.”[132] Generally, a “hostile environment” exists when “unwelcome conduct” is sufficiently “severe” or “pervasive” enough that it “denies” a student “equal access” to an educational “program or activity.”[133] A school’s failure to regulate harassment, even if it originates online or on social media, may still give rise to liability for school districts depending on the factual circumstances.[134] In addition, a school district’s response to harassment is subject to oversight by the DOE’s Office of Civil Rights.[135]
The harassment of a student based on a disability” constitutes “disability-based harassment” in violation of Section 504.[136] Under Section 504’s implementing regulations, “students with disabilities” are also entitled to the provision of a free appropriate public education (“FAPE”).[137] In addition, harassing speech involving a student with a disability may impact the provision of a FAPE.[138] Similarly, additional procedures exist for analyzing speech that may be considered a “manifestation” of a student’s disability.[139] Whether or not a student’s speech is a “manifestation” of their disability is a determination made by a “group of knowledgeable persons,” called a “Section 504 team.”[140] This specific administrative “evaluation,” referred to as a Manifestation Determination Review (“MDR”), is governed through a separate process under Section 504.[141]
Title IX prohibits “sexual harassment,” and like Title VI and Section 504, this type of conduct must be regulated if it creates a “hostile environment.”[142] Whether sexual harassment has occurred is highly factual, based on a “constellation of surrounding circumstances.”[143] Unlike Title VI and Section 504, a school’s response to complaints of sexual harassment is largely dictated by Title IX’s formal grievance process.[144] Within this context, specific due process procedures exist for parties engaged in Title IX grievances,[145] which are not construed to limit any other separate rights held by disabled students under the Constitution[146] or other federal laws like Section 504.[147]
Title IX’s interpretation continues to fluctuate for secondary public schools.[148] In May 2020, prior to the Supreme Court’s opinion in Mahanoy, the DOE issued detailed Title IX regulations addressing sexual harassment within “education program[s] and activit[ies].”[149] Under the 2020 Title IX regulations, a school’s response to sexual harassment is limited to “locations, events, or circumstances” where the school “exercised substantial control” over the accused student and “the context in which the sexual harassment occurred.”[150] The “substantial control” rule is a “fact-specific inquiry,” grounded in the scope of a traditional school building, but also covers online sexual harassment enabled by the “use of cell phones or the internet.”[151]
In April 2024, the DOE issued new Title IX regulations,[152] which resulted in multiple lawsuits across the United States.[153] Among many changes to the 2020 Title IX regulations, the DOE’s 2024 Title IX regulations interpreted Mahanoy, as well as the circuit court case law discussed in Part IV, as permitting school districts to regulate off-campus student speech that “created a hostile environment.”[154] In January 2025, the DOE’s 2024 Title IX regulations were vacated nationwide by order of Judge Reeves in Tennessee v. Cardona.[155] Judge Reeves ruled, among other things, that the 2024 Title IX regulations exceeded the DOE’s statutory authority for rulemaking and violated the First Amendment by compelling speech related to a student’s “asserted gender identity.”[156] Cardona offered no opinion on Mahanoy or the scope of off-campus speech regulation in bullying and harassment law.[157] Under the new Trump Administration, the DOE did not appeal Cardona.[158]
Following Cardona, DOE’s interpretation of Title IX shifted back to its 2020 pre-Mahanoy approach.[159] Without specifically addressing Mahanoy, or any of the circuit court cases in Part IV, the DOE clarified in a guidance document that under its 2020 Title IX regulations, it followed the “substantial control” rule for assessing online harassing speech.[160] Thus, the “substantial control” test remains a “jurisdictional condition” that is highly fact-specific, especially in the assessment of online harassment,[161] but can still extend online to “email, texts . . . apps, or other technologies,” such as social media platforms.[162]
There is no doubt that “bullying among students is a complicated problem.”[163] While there certainly is “no constitutional right to be a bully,”[164] unless student speech fits into one of the categories identified in Section III.A, the regulation of bullying speech is primarily governed by state law. [165] To date, all fifty states have anti-bullying laws designed to protect students in the learning environment.[166] Generally, anti-bullying statutes prohibit cyberbullying and include the following regulatory components: (1) a specific definition of bullying conduct, (2) a requirement that public schools prohibit bullying in schools, and (3) a directive for public school districts to effectuate the law by enacting and implementing policies at the district level.[167] Like with harassment under federal law, in some circumstances a school’s regulation of bullying can extend online through social media.[168] However, the scope of a school’s regulation for off-campus bullying speech varies by state and the breadth of policy language enacted at the school level.[169] Some of the variance embedded within state anti-bullying laws was streamlined through DOE’s longstanding 2010 Harassment and Bullying Guidance, which was rescinded, in part, at the start of the second Trump Administration.[170]
In short, secondary public schools must balance multiple conflicting layers of statutory law and policy when choosing how to regulate Middle Ground speech.[171] On the one hand, schools have affirmative duties to address student speech that could constitute bullying or harassment under both state and federal law.[172] A school’s response to bullying or harassment must also consider separate procedures for “students with disabilities” under Section 504[173] and “sexual harassment” grievance procedures under Title IX.[174] On the other hand, the First Amendment is a “bedrock” constitutional principle.[175] The Supreme Court issued a clear directive in Mahanoy (a non-bullying or harassment case) for administrators to show caution when disciplining student speech that originated off-campus, outside of the traditional school day.[176] Furthermore, at least in the category of “sexual harassment,” the DOE’s prior interpretation of Mahanoy in the Middle Ground was not renewed after Cardona.[177] Rather, public schools were issued general guidelines with no analysis of Mahanoy and with a renewed focus on “substantial control.”[178]
However, as the cases in Part IV demonstrate, even if the regulatory focus shifts to the traditional on-campus setting in years to come, modern student speech quickly veers off-campus in the social media era, only to return to the “schoolhouse gate”[179] in viral form for administrators to address as a disruption in the learning environment.[180]
As discussed in Part II, the Middle Ground of the off-campus student speech spectrum was left barren after Mahanoy. Part IV examines how the First, Tenth, Ninth, and Sixth circuits have begun to analyze the Middle Ground since Mahanoy.[181]
The first circuit court to address off-campus student speech under Mahanoy was the First Circuit. In Doe v. Hopkinton Public Schools,[182] two parents reported that their minor child (Roe) had been bullied within the school’s hockey team.[183] Like all other states,[184] Massachusetts had enacted an “anti-bullying statute” which required, among other things, that public schools implement a bullying policy at the school-level.[185] In their complaint, Roe’s parents alleged that one of the hockey team members videoed Roe during hockey team activities without his permission and posted messages about Roe in a group chat.[186] The group chat included messages that were “demeaning and expletive-laced” discussing the student’s “appearance, voice, intimate anatomy, parents, and grandmother.”[187] Some of the videos recorded were shared with other players on the hockey team via private group messages on Snapchat.[188] Roe was made “aware of the existence of the Snapchat group,” when several team members “discussed it in front of him.” [189] However, he “never saw” any of the messages “circulated” by his teammates about him.[190] Roe later “obtained counseling,” “declined to try out for the lacrosse team,” and entered formal mental health treatment,” because of the bullying he experienced.[191]
Following an investigation under the school district’s anti-bullying policy, eight students were found responsible for bullying and subjected to discipline.[192] Two of those students sued the school district, claiming that their conduct was protected under the First Amendment.[193] Neither of these two students took pictures of Roe, but they were part of the group chat, “participated in, and encouraged the bullying” that occurred as a part of the school’s extra-curricular program.[194]
In its opinion, the First Circuit affirmed that under Tinker, public schools have a “special interest” in regulating student speech in two distinct areas: speech that was substantially disruptive or speech that involved the “invasion of the rights of others.” [195] Then, the First Circuit discussed Mahanoy, reiterating that the school’s “special interest” in regulating student speech was “significant” when addressing “serious or severe bullying or harassment” in the off-campus setting. [196]
However, the First Circuit distinguished the “general statement of discontent” in Mahanoy by affirming that “bullying [was] the type of conduct that implicate[d] . . . [a] protecti[on] against the invasion of the rights of others . . . in Tinker.”[197] Thus, for the First Circuit, regulating “bullying” speech was framed as a “pedagogical interest,” one that remained strong “even in off-campus circumstances.”[198]
Ultimately, the First Circuit distinguished Mahanoy, holding that Levy’s “general statement of discontent” about the cheerleading team, “not directed at any individual,” was “qualitatively different” from “encouragement” of bullying “that target[ed] and invade[d] the rights of an individual student.”[199] Therefore, the First Circuit concluded that if a “causal connection” existed between the students’ speech and the bullying, it could properly be disciplined by the school as an “invasion of rights.”[200] Because both students “encouraged” the bullying that occurred, the First Circuit held a causal connection existed, and the school’s discipline did not violate the First Amendment.[201]
The Tenth Circuit has addressed off-campus speech too. In C1.G v. Siegried,[202] a high school student (C.G.) went to a local thrift store with several friends on a Friday evening.[203] During the outing, C.G. took pictures of his friends wearing “wigs and hats,” one of which “resembled a foreign military hat from the WWII period.”[204] C.G. posted the picture, along with an antisemitic caption about the Jewish community on Snapchat.[205] Before the Snapchat post was deleted by C.G., one of his classmates took a screenshot of the post, which was later forwarded to the school’s principal by his classmate’s parent.[206]
The school district commenced a school-level investigation, concerned that the post had been “widely circulated throughout the area’s Jewish community,” and that the post had “scared, angered, and saddened a family who said their son was worried about having a class with C.G.”[207] Thereafter, C.G. was suspended from school pending the outcome of a school-level investigation.[208] Ultimately, C.G. was expelled for violating policies prohibiting “verbal abuse” as well as “intimidation, harassment . . . insulting . . . or threatening” behavior.”[209] However, no specific harassment policy was applied in the decision.[210] C.G.’s father then brought a lawsuit against the school district under the First Amendment.[211]
In its opinion, the Tenth Circuit analyzed C.G.’s off-campus speech under both Tinker and Mahanoy.[212] Like Mahanoy, the Tenth Circuit found C.G.’s digital speech was transmitted “outside of school hours from a location outside the school” on a “personal cellphone” to a “private circle” of his online friends.[213] Like Mahanoy, the court found that no one at C.G.’s school was specifically “target[ed] . . . with vulgar or abusive language” either.[214] Unlike the First Circuit, which relied just on Tinker’s “invasion of rights” prong, the Tenth Circuit just applied Tinker’s “substantial disruption” test to resolve the case.[215]
On balance, the Tenth Circuit held that one “email chain with one family,” without evidence of any “specific threats” or speech “directed toward the school or its students,” fell short of meeting “‘Tinker’s demanding standard.’”[216] The Tenth Circuit said “simply invoking the word[] ‘harass’” when the speech did not “constitute harassment,” did not transform otherwise constitutionally protected speech into harassment.[217] Accordingly, the Tenth Circuit reversed the school district’s decision, holding that the First Amendment was violated in C.G.’s case.[218]
Like the First and Tenth Circuits, the Ninth Circuit has addressed off-campus student speech since Mahanoy. In Chen ex rel. Chen v. Albany Unified School District, [219] two high school students were expelled for speech directed at fellow students captured within a private group chat on Instagram.[220] The private account was used by a group of students to make “cruelly insulting posts” about their fellow classmates.[221] Content posted to the account ranged from “immature” topics, such as “braces” or “weight,” to “targeted vicious invective” with “deeply offensive” “racist and violent themes” about fellow classmates at their school.[222]
Although the Instagram account was “intended to [remain] private,” several photos from the account were shown to one of the targeted students during a weekend outing.[223] When classes resumed the following week, chaos ensued at the school.[224] Although the school’s principal believed speech in the group chat constituted “harassment and bullying based on race and gender,” no specific bullying or harassment policy was applied in the disciplinary process.[225] Ultimately, two students from the group chat were expelled from the school and later filed lawsuits claiming that the private Instagram posts were protected as off-campus speech under Mahanoy.[226]
Like the Tenth Circuit, the Ninth Circuit recognized that Tinker governed in two domains: “substantial disruption,” or a “‘colli[son] “with the rights of other students to be secure and to be let alone.”’”[227] Although the Ninth Circuit concluded that “[t]he precise scope of Tinker’s interference with the rights of others language [was] unclear,” it held that students have no First Amendment right to “‘target’ specific classmates . . . with ‘vulgar or abusive language.’”[228] In that same regard, the Ninth Circuit turned to Fraser and Hazelwood for guidance.[229] Under these precedents, the Ninth Circuit reasoned that a school was not required to “tolerate student speech that [was] inconsistent with its basic educational mission”[230] and that “schools may insist on ‘civil discourse’ in the school context,” because it reinforces “the shared values of a civilized social order.”[231] Thus, the Ninth Circuit “readily” concluded that if the speech at issue had occurred on-campus, the school was justified in regulating it under the Tinker doctrine.[232]
The question presented in Chen was different: could “private” speech rendered off-campus be regulated under the First Amendment?[233] Rather than applying Fraser, Hazelwood, or either of Tinker’s two-prongs directly, the Ninth Circuit employed its own “nexus” test to resolve the case.[234] To be sure, the Ninth Circuit’s “nexus” test incorporated Tinker’s “substantial disruption” test but added its own “additional standards” for the off-campus context.[235] While the Ninth Circuit agreed that under Mahanoy, the student’s parents “ha[d] the primary responsibility” of “policing his off-campus use of social media,” it found that the school still had a “responsibility” to protect other students “maltreated by their classmates.”[236] Therefore, although the regulation of some off-campus student speech had been “diminished” by Mahanoy, it was not eliminated in all areas.[237] The Ninth Circuit concluded that once the Instagram posts “hit their targets,” affected students became subjected to “severe bullying or harassment,” which was one of the “off-campus circumstances” where “‘[t]he school’s regulatory interests remain[ed] significant.’”[238]
The Ninth Circuit also confronted how the harassing nature of the off-campus speech implicated more than just First Amendment concerns.[239] The Ninth Circuit pointed out that the school’s “failure” to adequately respond to the type of speech it had become aware of by other students, could have “exposed it to potential [litigation]” under a “racially hostile environment” theory of liability.[240] In that regard, the Ninth Circuit stated that “severe targeted harassment” based on “physical characteristics,” like the speech on the Instagram account, “vilifie[d]” the students based on their race, which “threaten[ed]” their “‘sense of physical . . . emotional and psychological, security.’”[241] The same legal liability would be evident, according to the Ninth Circuit, if the harassment was based on sex, which is governed by Title IX.[242] Ultimately, the Ninth Circuit concluded that the student’s off-campus speech had a sufficient “nexus” to the school environment to warrant discipline.[243] Thus, the Ninth Circuit held that the First Amendment was not violated.[244]
The Sixth Circuit has also interpreted Tinker in a post-Mahanoy case. In Kutchinski v. Freeland Community School District,[245] a high school student, H.K., created a fake Instagram account to “impersonate his biology teacher.”[246] H.K.’s initial post to the account was a “photograph of a gas pump” embedded with a “hypodermic needle” and a caption that read: “[w]atch out guys, I am concerned for everyone’s safety!”[247] H.K. then shared the fake account with two other students, who began posting their own content about the biology teacher, as well as comments about other teachers and a disabled student at the school.[248] Unlike H.K.’s initial post, subsequent posts to the account were sexually “graphic, harassing, and threatening.”[249]
When school resumed on Monday, rumors began to “spread around” the campus about the fake account.[250]Following a school-level investigation and disciplinary hearing, the school district’s superintendent imposed a suspension on H.K. for “gross misbehavior” in “posting a fake Instagram account impersonating a teacher.”[251] No specific bullying or harassment policy was followed by administrators at the school level.[252] The school’s decision was later challenged in federal district court by the student’s father on free speech grounds.[253]
The Sixth Circuit took yet another approach to regulating off-campus speech. Like the First, Tenth, and Ninth Circuits before it, the Sixth Circuit concluded that Mahanoy allowed schools to regulate off-campus speech involving “serious or severe harassment.”[254] The Sixth Circuit concluded that the “student speech at issue” amounted to “serious or severe harassment” of teachers and a student.[255] However, it did not undertake any specific inquiry to fully evaluate how the speech fit within this category.[256] Rather, in analyzing Tinker and Mahanoy together, the Sixth Circuit applied a two-step framework for off-campus student speech cases.[257] This approach posed two questions: Did the student bear “responsibility” for the off-campus speech?[258] And if so, was it an “actual” or “reasonably forecast[ed]” that it would cause a “substantial disruption”?[259] On the question of “responsibility,” the Sixth Circuit held that if “a student causes, contributes to, or affirmatively participates in harmful speech,” then the student “bears responsibility” for it.[260] Because H.K. created the Instagram account and made it accessible to other students, his behavior satisfied the “responsibility” prong.[261]
The Sixth Circuit then turned to Tinker’s “substantial disruption” test.[262] Like the Tenth and Ninth Circuits,[263] the Sixth Circuit understood the “substantial disruption” test to be a “demanding standard.”[264] However, the Sixth Circuit acknowledged that school officials still need “flexible authority to respond to disciplinary challenges”[265] and should be afforded a “high degree of deference in the exercise of their professional judgment.”[266] With that deference in mind, the Sixth Circuit had little trouble seeing that a fake online account, “impersonat[ing] [one] teacher” and “direct[ing] sexual and violent posts” at other teachers and a student, could “substantially disrupt” the learning environment.[267] Accordingly, the Sixth Circuit held that H.K.’s “off-campus” speech was not protected by the First Amendment.[268]
In sum, the circuit court cases discussed in Part IV begin to fill the void that Mahanoy left behind on the student speech spectrum. For the most part, circuit courts have concluded that Mahanoy means what it says: regulation of off-campus student speech is limited in secondary schools, except in one area, targeted forms of “serious or severe bullying and harassment.”[269] Within this domain, the regulation of off-campus speech is Limited – Not Eliminated.[270] Circuit courts have mostly taken notice that Tinker should be interpreted as a “demanding standard” too.[271]However, except for the First Circuit, no other post-Mahanoy circuit court in Part IV has effectively connected off-campus speech to any specific definition of “serious or severe bullying or harassment,”[272] critically analyzed a school’s administrative bullying or harassment process, or fully reconciled off-campus student speech with the current regulatory scope of anti-discrimination statutes outlined in Part III.[273]
As Part V argues, differing post-Mahanoy approaches to Tinker’s two-component parts—the “invasion of rights” and the “substantial disruption” tests—along with the emergence of Fraser and Hazelwood, re-ignite old debates, challenge the jurisdiction for off-campus speech regulation, and highlight the need for a post-Mahanoy framework aligned with the current Middle Ground apparatus outlined in Part III.
Tinker was affirmed by the Supreme Court in Mahanoy,[274] and it is still the leading constitutional inquiry for secondary student speech issues occurring in traditional on-campus settings.[275] However, Tinker’s application to off-campus student speech was Limited—Not Eliminated by Mahanoy. Since Mahanoy, scholars have recognized the “enormous[] difficult[y]” in “balanc[ing] free speech rights, with the “need to create a conducive learning environment.”[276] However, as First Amendment scholar Dean Chemerinsky put it: “The crucial question moving forward will be how that line is to be drawn.”[277] To help refine this practical problem, Part V begins by analyzing different circuit court approaches discussed in Part IV, as well as the doctrinal problems they create for the First Amendment.
As explained in Part IV, Tinker has two independent parts: “invasion of rights” and “substantial disruption.”[278] Each of Tinker’s components are visible in the circuit court opinions discussed in Part IV. However, those components are being pulled in different directions.
Under Tinker, speech that is “an invasion of the rights of others” to “be secure and to be let alone” is not speech protected by the First Amendment.[279] However, as scholars[280] and courts have noted, the Supreme Court has never clarified the scope of Tinker’s “invasion of rights” prong.[281] Nor has it explained precisely how it operates in relation to the “substantial disruption” test.[282]
Nevertheless, in Hopkinton, the First Circuit resolved an off-campus bullying case entirely under Tinker’s “invasion of rights” prong without evidence of a “substantial disruption” to the learning environment.[283] For the First Circuit, this singular approach was consistent with the First Amendment because the State of Massachusetts adopted an “anti-bullying” statute.[284] and “bullying [was] the type of conduct that implicate[d] . . . [a] protecti[on] against the invasion of the rights of others . . . in Tinker.”[285] Thus, under the First Circuit’s rule, if a student violates a state’s anti-bullying statute, a school can lawfully restrict off-campus speech through Tinker’s “invasion of rights” prong, “even if it does not necessarily cause substantial disruption to the school community more broadly.”[286]
The First Circuit is the only circuit since Mahanoy to resolve a Middle Ground case without applying a “substantial disruption” test, or a comparable inquiry, such as a “nexus” test.[287] Unlike Chen and Kutchinski, in Hopkinton the off-campus speech never “hit its target[].”[288] While the victim was “aware” that a group chat about him existed, he “never saw” any of the messages.[289] This is not to say that those messages had no impact on him—they certainly did.[290] However, “‘impact[]’ does not necessarily equal substantial disruption.”[291] The rationale for the discipline in Hopkinton was simply “invasion of rights,” not “substantial disruption.”[292] This outcome makes an “invasion of rights” amounting to “serious or severe bullying or harassment” operate more like Fraser, Hazelwood, and Morse, where no “substantial disruption” is required.[293]
The problem with the First Circuit’s approach is more than semantics. The phrase “serious or severe bullying or harassment” was just a passive reference in Mahanoy, not a term of art.[294] There is no definition for this category of speech in Mahanoy or any of the circuit court opinions in Part IV interpreting Mahanoy. As Hopkinton demonstrated, the regulation of “bullying” speech primarily turns on the substance of state law.[295] Thus, a reliance on the “invasion of rights” prong likely hinges on the language of state specific anti-bullying laws,[296] the breadth of policy language enacted at the school level,[297] and federalism principles like the Supremacy Clause.[298] Ultimately, at least in the First Circuit, Tinker’s “invasion of rights” prong is a sufficient way to address off-campus bullying speech without the need for a “substantial disruption” to the learning environment.[299]
The application of Tinker’s “substantial disruption” test is more complicated since Mahanoy. Although Tinker was decided in 1969, Mahanoy is the only Supreme Court case to apply the “substantial disruption” test in the majority opinion of a student speech case.[300] Mahanoy found Tinker to be a “demanding standard,” but the Court mostly just reflected on the “substantial disruption” test’s components, with only a brief application to the off-campus facts leading to Levy’s discipline.[301] Except for the First Circuit, every other circuit court has held that “substantial disruption,” in some form, is still required under the First Amendment.[302] The Tenth Circuit resolved C1.G by applying a run-of-the mill “substantial disruption” test.[303] The Ninth Circuit decided Chen by applying a pre-existing “nexus” test that contained portions of the “substantial disruption” test and “additional standards” for the “off-campus” settings.[304] Similarly, the Sixth Circuit applied a slightly different two-step equation – but defaulted to a traditional “substantial disruption” test to resolve the case.[305]
Nomenclature aside, the Tenth, Ninth and Sixth circuit court approaches all aim towards the same mark: determining whether off-campus speech connects to harm, and if so, whether that harm substantially disrupted the learning environment.[306] However, if other circuits choose to follow the First Circuit’s singular “invasion of rights” approach, then the “substantial disruption” test could become just another tool in the toolbelt—not a necessary component of the Tinker analysis.[307] Similarly, if other circuits continue to add their own “additional standards,” like the Ninth Circuit did in Chen,[308] then the “substantial disruption” test could be destined for the same fate as other balancing tests disfavored by the Supreme Court in recent memory.[309]
The Ninth Circuit’s application of the “nexus” test also raises new (and renewed) questions for the off-campus analysis.[310] In Chen, the Ninth Circuit determined it was not constrained by either Tinker or Mahanoy.[311] Therefore, it applied its own “nexus” test to resolve the case, not just Tinker’s traditional “substantial disruption” test.[312] The Ninth Circuit recognized that the “nexus” test possessed many of the same factors as Tinker’s “substantial disruption” test—which it does.[313] But this just begs another question: if the Ninth Circuit’s “nexus” test incorporates the “substantial disruption” test, then is the “nexus” test a “demanding standard” too?
This is an important question. Prior to Mahanoy, there was no consensus on the legal framework for addressing online student speech.[314] Like the Ninth Circuit, as the internet proliferated, many other circuits developed “nexus” tests, or something similar, to combat cyberbullying.[315] There is nothing inherently wrong with these approaches. The real problem is that these circuit court approaches were just a means to an end – not the end itself. The entire line of cases following Morse emerged out of necessity because the Supreme Court did not grant certiorari in another student speech case for fifteen years.[316]
The Supreme Court could have adopted a “nexus” test, updated the “substantial disruption” test, or abandoned it altogether when it decided Mahanoy. This outcome could have resulted in a more uniform approach for off-campus student speech issues for the information age. But that’s not what happened.[317] The Mahanoy Court reversed the Third Circuit’s “categorical” approach[318] and explicitly declined the invitation to articulate a “broad, highly general” rule.[319] As a result, several “highly general” rules have emerged from circuit courts instead.[320] Therefore, if other circuits with pre-existing “nexus” tests follow the Ninth Circuit’s lead, another circuit split of authority is inevitable.
Ultimately, if the “substantial disruption” test is to be interpreted as a “‘demanding standard,’” then “[s]atisfying” it will be “no easy lift” for courts.[321] Thus, some courts may opt to avoid the “substantial disruption” test altogether, by just relying on Tinker’s “invasion of rights” prong, which is less clear.[322] Courts may also turn to Tinker’s “offshoot,”[323] the “nexus” test, where unanswered questions continue to persist. For now, the Ninth Circuit’s distinction on Tinker’s “invasion of rights” prong raises more doubt about the First Circuit’s approach and reinforces the overriding need for “substantial disruption” in the speech analysis.[324]
Hopkinton and Chen bring the scope of Fraser and Hazelwood into focus for the Middle Ground. In Fraser, the Court reasoned that schools were responsible for teaching “shared values of a civilized social order.”[325] In Hazelwood, the regulation of speech was justified because of the school’s “pedagogical concerns.”[326] In both cases, the Court held that schools were not required to “tolerate” student speech that didn’t align with its “basic educational mission.”[327] Taken together, Fraser and Hazelwood have proven to be integral in combatting bullying and harassment issues in the traditional on-campus setting.[328] The same premise has not been extended into the off-campus setting.[329]
Recall that in Hopkinton, the First Circuit relied on Tinker’s “invasion of rights” prong to resolve its off-campus bullying case.[330] Hopkinton framed the regulation of off-campus bullying speech as a “pedagogical interest,”[331] which was the basic premise in Hazelwood, not Tinker.[332] Similarly, the Ninth Circuit found Fraser and Hazelwood “readily” applicable to combatting the harassing speech in Chen if it had originated on-campus, but the court still defaulted to applying the “nexus” test because the speech originated off-campus.[333] The Ninth Circuit toed the line with good reason. Tinker applies “in class or out of it.”[334] Fraser and Hazelwood do not.[335] Therefore, reliance on Fraser and Hazelwood outside the on-campus setting may still run afoul of the principle in Mahanoy – that a student’s off-campus speech is presumptively protected.[336] Thus, it remains an open question whether combatting “serious or severe bullying and harassment” is so fundamental to a school’s twenty-first century “educational mission,” that Fraser and Hazelwood will be extended by the Supreme Court into the Middle Ground analysis with Mahanoy.[337]
As explained in Part III, regulating bullying and harassment is not just a laudable goal for school districts—it is an “affirmative duty.”[338] However, the impact of social media, the role of institutional policy, and the scope of overlapping legal standards – were not comprehensively addressed in Mahanoy. Nevertheless, these practical concerns still face school officials each day.
A basic premise in Tinker is that students have a right to be “secure” in the school setting.[339] Being “secure” means “not only freedom from physical assaults” but also from “psychological attacks that cause young people to question their self-worth.”[340] In that same regard, post-Mahanoy, some circuit courts have recognized that “serious or severe bullying and harassment” based on “physical characteristics” like race, sex or disability, “threatens” a student’s “‘sense of . . . emotional and psychological[] security.’”[341]
Although Congress “did not enact” anti-discrimination laws “with cell phones in mind,”[342] digital devices infused with social media applications are readily available to secondary students.[343] Consequently, a student’s online speech can go “viral” in an instant.[344] Online speech is then accessible to a wider audience, which could include same-age peers, teachers, or even casual consumers of digital content.[345] These factors extend the reach of bullying or harassing speech, significantly increasing the likelihood that the speech will eventually “hit its target[]” in the real world[346] and make its way back to the “schoolhouse gate.”[347] Once a school becomes aware of Middle Ground speech impacting the school setting, as it did in Chen, even if it originated “off-campus,” the school’s “failure” to adequately respond could “expose[] it to potential liability.”[348]
Still, the regulation of Middle Ground speech is not limitless.[349] If a student’s off-campus conduct doesn’t fit into the “serious or severe bullying or harassment” category, “simply invoking the word[] ‘harass,’” as the Tenth Circuit concluded in C1.G, is insufficient to meet “Tinker’s demanding standard.”[350] Indeed, the First Amendment protects “unpopular” and offensive speech too.[351] C1.G and Mahanoy affirm these “bedrock” First Amendment principles,[352] although CI.G pushes the limits of permissible off-campus speech much further than Mahanoy did.[353]
In the end, the real takeaway is this – if the Middle Ground can be regulated under Mahanoy, then it must be regulated.[354] Hopkinton, Chen, and Kutchinski all suggest that when regulating Middle Ground speech, Mahanoy is not really a caution light—it’s a green light.[355] This is because of affirmative duties to prohibit bullying and harassing speech, as well as the “significant interest”[356] at stake in protecting other students from harm.[357] However, the scope of a school’s “affirmative duty” under federal law remains the critical issue in 2026.[358] Each of the circuit court cases analyzed in Part IV were decided before Cardona was issued and the DOE’s interpretation of Title IX shifted in 2025. Thus, in the wake of Cardona, schools must weigh a broad interpretation of Mahanoy in the Middle Ground by circuit courts with systematic policies shifting into neutral by DOE.[359] For now, school districts remain on the “razor’s edge”[360] of liability each time a new social media post is made from a student’s cellphone.
In each of the circuit court cases discussed in Part IV, the basis for regulating off-campus speech was Mahanoy’s carveout for “serious or severe bullying and harassment.”[361] However, neither Mahanoy, nor any of the circuit court cases interpreting Mahanoy, defined the “serious or severe bullying and harassment” category with precision.[362] Furthermore, the First Circuit is the only circuit where a specific bullying or harassment policy was critically analyzed against Middle Ground speech to decide the case.[363] This raises practical concerns for school officials and trial courts. Mainly, if schools premise their regulation of off-campus speech on the “serious or severe bullying and harassment” justification in Mahanoy, then the jurisdictional scope of bullying and harassment laws must also be considered in the legal inquiry.[364]
For the most part, post-Mahanoy circuit courts have not been this exacting in their review.[365] C1.G highlights an alternative analysis that courts could undertake in future cases.[366] As more case lines emerge in the wake of Mahanoy and Cardona, fact-patterns closer to CI.G could result in a more granular judicial approach—one more focused on policy implementation and the scope of regulatory jurisdiction. This outcome is most likely to arise in “sexual harassment” cases brought under Title IX, which has a recognized “substantial control” jurisdictional limit, defined terms, and robust grievance procedures.[367] For now, neither DOE guidance nor the post-Mahanoy case law in Part IV fully reconcile the bullying and harassment apparatus outlined in Part III with Mahanoy, re-enforcing the need for the more global approach proposed in Part VI.
To fill the void on the off-campus speech spectrum created by Mahanoy, Part VI offers a framework for analyzing the Middle Ground in the new post-Mahanoy and Cardona era. The proposed framework navigates student free speech rights within the labyrinth of education laws that make up the twenty-first century public education system.[368] This proposed framework balances individual free speech rights and Dean Chemerinsky’s call for balance in the implementation of federal and state laws designed to protect students.[369] Application of this multi-tiered decision matrix encourages institutional policy compliance and promotes equity in student speech rights for the education community at large.
The first question to answer is whether the off-campus student speech is “harassment” under federal law. As set forth, although Mahanoy diminishes a school’s regulation of off-campus speech, it does not eliminate the regulation of “targeted” forms of off-campus speech that amount to “serious or severe bullying or harassment.”[370] Rather, Mahanoy recognized the “significant” interest that public schools have in regulating this type of speech—which circuit courts have begun to capture in case law.[371] Still, neither Mahanoy nor any of the circuit court cases interpreting Mahanoy in Part IV, defined the scope of the “serious or severe bullying or harassment” category, considered jurisdictional limitations, or critically analyzed the overlap with federal anti-discrimination laws like Title VI, Title IX, and Section 504.
However, public schools still have an “affirmative duty” to prohibit “harassment” under federal law.[372] Thus, once a school becomes aware of speech that could constitute harassment under federal law, it must respond to address the existence of a “hostile environment” in the school environment.[373] The highly factual nature of this inquiry creates tension in the practical application of bullying and harassment policies for off-campus speech implemented at the school level.[374] Therefore, Question One should be addressed first, and may be answered by following a two-step process.[375]
The first step in answering Question One is to identify what category of off-campus speech could be implicated under federal law—race, sex, or disability. To answer this threshold question, school officials should first evaluate whether the off-campus speech allegations could meet any applicable definition of harassment recognized under federal law. If the answer to Step One is “no,” then the answer to Question One is “no.” In this instance, school officials should proceed to Question Two.[376] If the answer to Step One is “yes,” then school officials should proceed to Step Two.
If off-campus speech could be considered harassment under any category recognized under federal law, a deeper investigation into the factual circumstances is required.[377] Note, several important distinctions exist within Step Two based on the category of speech at issue. First, if the allegations involve “sexual harassment,” a school district’s jurisdiction is guided by the DOE’s “substantial control” analysis, and its overall response is governed by Title IX’s 2020 regulations.[378] Second, if the allegations involve “disability-related harassment,” modifications to a student’s Section 504 plan may be necessary to remedy bullying and harassment or address broader speech issues for the provision of a FAPE.[379] In addition, if the speech at issue was rendered by a “student[] with a disabilit[y],” school officials must be mindful of separate MDR requirements.[380]
At the conclusion of the administrative process outlined in Step Two, if the answer to Question One is “no,” then school officials should proceed to Question Two. If the answer to Step Two is “yes,” then school officials may also analyze under Question Two (depending on applicable state law and the breadth of school policy language) but must ask Question Three to satisfy the First Amendment.[381]
The second question is whether the off-campus speech is considered bullying under state law. Again, not all off-campus speech will fit within the definition of “harassment” under federal law.[382] Nevertheless, some off-campus speech may still be considered bullying under applicable state law.[383] Overall, restrictions on speech will hinge on the scope of applicable state law, specific definitions of bullying (which vary by jurisdiction),[384] and federalism principles – like the Supremacy Clause.[385] However, critical administrative decisions will be made without reliance on the full scope of DOE’s longstanding 2010 Harassment and Bullying Guidance, as it was significantly modified in 2025.[386] Still, like with harassment, any determinations made on the issue of bullying that impacts a “student[] with a disabilit[y]” must comply with separate Section 504 requirements.[387]
At the conclusion of the school-level bullying inquiry, if the answer to Question Two is “yes,” school officials should then ask Question Three to satisfy the First Amendment.[388] However, if the answers to Questions One and Two are “no,” then a student’s off-campus speech likely does not fit into the Middle Ground category, and it is presumptively protected under Mahanoy.[389]
Nevertheless, regulation of off-campus speech was Limited – Not Eliminated by Mahanoy. Although “serious or severe bullying and harassment” was a phrase embedded in the Court’s opinion, those terms were not defined by the Court.[390] The vagueness in Mahanoy, along with the aggregate of circuit court case law in Part IV, and the significance of the interest at stake, leave space on the margins of the Middle Ground for reasonable decision-making that must be counterbalanced with the DOE’s shifting interpretation of bullying and harassment law in 2025. Furthermore, nothing in Mahanoy categorically prohibited schools from regulating off-campus speech that doesn’t amount to “serious or severe bullying or harassment” more broadly through a general code of student conduct. [391] However, this type of broader regulation of off-campus speech poses significant constitutional and statutory risks for school officials post-Mahanoy and Cardona. [392]
As set forth supra, if off-campus speech qualifies as bullying or harassment under state or federal law, it likely fits within Mahanoy’s undefined “serious or severe bullying and harassment” category. [393] However, to satisfy the First Amendment, school officials must still ask a final baseline question: did the off-campus speech cause a “substantial disruption” to the learning environment?[394]
Although the First Circuit’s “invasion of rights” analysis aligns with Tinker, most post-Mahanoy circuit courts have concluded that the “substantial disruption” test is still the “better fit” for all student speech issues. [395] Satisfying the “substantial disruption” test is a “demanding standard” for school officials. [396] Moreover, the Supreme Court has never answered fundamental questions about the “invasion of rights” prong, leaving the scope of this analysis “unclear.”[397] Similarly, Mahanoy offered no opinion on the application of the “nexus” test, or any other equivalent test akin to the “substantial disruption” test. Therefore, it remains an open question whether inquiries like the “nexus” test update, replace, or work in tandem with – the “substantial disruption” test. [398] For now, lower courts reviewing off-campus speech cases are likely to just continue applying either a traditional “substantial disruption” test, or a permutation recognized in their jurisdiction like the “nexus” test, interchangeably, to evaluate the impact of off-campus speech on the learning community.[399]
With these doctrinal factors in mind, on balance, if the answer to Question Three is “yes,” then the student’s off-campus speech is not protected by the First Amendment under Tinker and Mahanoy.[400] If the answer to Question Three is “no,” then the student’s off-campus speech is protected by the First Amendment.[401] Regardless of the outcome, in the absence of greater precedent directly from the Supreme Court, education stakeholders must continue to navigate discipline issues emanating from online social media applications with care in the evolving post-Mahanoy speech paradigm.[402]
Tinker continues its march towards sixty years as precedent. Each of the Supreme Court’s landmark cases from the twentieth century still heavily influence the current off-campus speech analysis.[403] Mahanoy builds on to these cases but ultimately just leaves space for new off-campus case lines to continue to emerge—and intersect—with shifting interpretations of the statutory framework.[404] In the trenches, circuit courts are still “working-it-out”[405] in the Middle Ground.[406] Tinker leads the charge, but differing approaches to Tinker’s component parts have re-emerged, which signals more litigation on the horizon.[407] School districts need a more uniform approach to manage the myriad legal issues that the Middle Ground presents to the learning community.[408] The proposed framework provides a comprehensive matrix to guide stakeholders through the post-Mahanoy and Cardona student speech inquiry.[409]
In the end, the Middle Ground isn’t just an abstract point on a hypothetical spectrum – it’s where the most critical speech issues are occurring in the twenty-first century. [410] The “sad truth” is not that our public schools are no longer “temples of learning teaching the lessons of good will, civility, and wisdom that are central to the fabric of American life.” [411] It is that the fabric itself is being worn thin by the effects of social media. [412] The unprecedented growth of social media continues to impact us all, but it has the greatest impact on our most impressionable groups: school-age children.[413]
There is no reason to think American society has reached its apex of social media use yet.[414] Artificial intelligence, along with wearable products like “Apple Vision Pro” [415] and Ray-Ban’s “Meta Smart Glasses” [416] are still in their infancy. These cutting-edge technologies allow users to integrate social media into the physical experience of life in ways that would make Marty McFly jealous.[417] With the release of each new technology, students will find innovative ways to speak – some with deep impact [418] – like in Malvern, Pennsylvania. [419] To combat this growing threat to the administration of public education, and to protect individual student rights, the Supreme Court must remain vigilant in defining the boundaries of off-campus speech. [420] Tinker continues to linger there—Limited, Not Eliminated—for now.
. See Mahanoy, 549 U.S. at 189, 192 (referring to the “substantial disruption” test); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001) (referring to Tinker’s “material disruption” test); see also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 688 (1986) (“It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities.”). But see discussion infra Part IV, Section V.A (discussing how the Supreme Court has never fully analyzed the scope of Tinker’s “invasion of rights” prong); Brannon P. Denning & Molly C. Taylor, Morse v. Frederick and the Regulation of Student Cyberspeech, 35 Hast. Const. L.Q. 835, 841, 846–50 (2008) (questioning where Tinker’s “rights of others” language fits into the speech analysis and analyzing the scope of the “rights of others” portion of Tinker); David L. Hudson Jr., Mahanoy Area School District v. B.L.: The Court Protects Social Media but Leaves Unanswered Questions, in Cato Supreme Court Review 2021–2022, at 93, 106 (2022) (pointing out that one of the “unanswered questions” from Mahanoy was the status of the “rights of others” language in Tinker). For a more in-depth review of the “rights of others” language in Tinker, see Brian Pickard, Tinkering with the Rights of Others: Harper v. Poway Unified School District, 8 Rutgers J.L. & Religion 7, 8–9 (2006). ↑