The Supreme Court clarified how to analyze First Amendment facial challenges to state laws last Term in NetChoice v. Moody. Facial challenges are typically challenges to a law as wholly unconstitutional in all of its applications, rather than merely in its application to the plaintiff in the controversy. Resolving a First Amendment facial challenge is difficult: courts aim to “provide[] breathing room for free expression,” but ruling for the plaintiff in a facial challenge necessarily rests on assumptions about how the law will be applied in hitherto unknown situations and “threaten[s] to short circuit the democratic process.” To be enjoined as facially unconstitutional, a “substantial number of [the law’s] applications” must be “unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Recently in Parents Defending Education v. Olentangy Local School District Board of Education, the Sixth Circuit refused to preliminarily enjoin on a facial overbreadth challenge three Olentangy Local School District policies implicating student speech. Although the policies do implicate some speech that the school district may permissibly ban—like properly defined actionable harassment—two of the three challenged policies are unconstitutionally overbroad because they sweep in too much constitutionally protected speech.
Parents Defending Education, a nationwide membership organization whose purpose is “to reclaim our schools from activists promoting harmful agendas,” filed a pre-enforcement challenge seeking to enjoin three Olentangy Local School District policies that it claimed violate the First Amendment. The first challenged policy was the school’s “Anti-Harassment Policy,” which prohibited “discriminatory harassment”[1] and “bullying.”[2] The second challenged policy was the “Personal Communication Devices (PCD) Policy,” which “governs student usage of personal communication devices,” like cell phones or computers. This policy forbids students from using their personal communication devices (PCDs) either on- or off-campus “in any way that might reasonably create in the mind of another person an impression of being threatened, humiliated, harassed, embarrassed or intimidated.” It additionally specifies that students may not use their devices to “transmit material that is threatening, obscene, disruptive, or sexually explicit or that can be construed as harassment or disparagement of others based upon their race, color, national origin, sex (including sexual orientation/transgender identity), disability, age, religion, ancestry, or political beliefs.”
The third challenged policy was the Code of Conduct, of which PDE challenged two provisions: the discriminatory language provision and the “harassment, intimidation, or bullying” provision. The discriminatory language provision defines “discriminatory language” as “verbal or written comments, jokes, and slurs that are derogatory towards an individual or group based on . . . race, color, national origin, sex (including sexual orientation and transgender identity), disability, age, religion, ancestry, or genetic information.” The harassment, intimidation, or bullying provision defines the terms together as “any intentional written, verbal, electronic, or physical act that a student has exhibited toward another particular student or students more than once and the behavior causes mental or physical harm to the other student(s) and is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for the other student(s).”
PDE alleged the policies violate the First Amendment because they chill students’ protected speech, as they are overbroad, compel students to use pronouns other than those biologically assigned to some students, and discriminate based on content and viewpoint. Additionally, plaintiffs stated that because one of the policies also applies off-campus, it violates parents’ Fourteenth Amendment rights because it reaches “well beyond the confines of the school day and into the privacy of families’ homes.”
The district court declined to enjoin the policies. It concluded that while students have First Amendment rights, the challenged policies “prohibit only speech that gives rise to fears of physical or psychological harm, materially affect student performance, substantially disrupt the operation of the school, or create a hostile educational environment,” and thus only touch speech that can be constitutionally prohibited by the school. Additionally, the district court acknowledged that requiring students to use “preferred pronouns” compels speech, but stated that the school district may permissibly do so for “legitimate pedagogical concerns” without “compel[ling] the speaker’s affirmative belief.” The court also rejected plaintiffs’ Fourteenth Amendment claim, finding that the policies do not impermissibly reach into the home.
The Sixth Circuit affirmed. Writing for the panel, Judge Stranch first emphasized that because a “preliminary injunction is an extraordinary and drastic remedy,” it “may ‘only be awarded upon a clear showing that’ the four preliminary injunction factors—likelihood of success on the merits, danger of irreparable harm, balance of the equities, and the public interest”—favor the plaintiff.
The majority then turned to whether the policies violate the standard set out in Tinker v. Des Moines Independent Community School District, which allows officials to prohibit speech only where they have a reasonable basis to believe the speech will either substantially disrupt school activities or interfere with the rights of others. Noting that Tinker does not require disruption to have already occurred, the court reasoned that students repeatedly and intentionally referring to other students by “non-preferred pronouns” would substantially disrupt the school because studies and reports by therapists show misgendering can cause psychological harms. The majority stated no evidentiary support is necessary to show there will reasonably be substantial disruption because it is a “common-sense conclusion[] based on human experience.”
Turning to plaintiffs’ compelled speech claim, the majority reasoned that because there is another option—calling transgender classmates by their first names—plaintiffs have not shown that the prohibition on intentional use of “non-preferred pronouns” unconstitutionally compels speech. Rejecting the argument that school officials may not require students to alter a message by making it more acceptable to others, the majority emphasized that the “special characteristics of the school environment” allow officials to require students to engage in certain speech, for example using honorifics when referring to teachers.
The court then rejected plaintiffs’ viewpoint discrimination claim, reasoning that the district is not attempting to prohibit any specific viewpoint because the challenged policies prohibit harassment, misconduct, and disruptive speech across a variety of categories and the district will allow students to communicate their beliefs through other means. While students may not use “non-preferred pronouns” and may use “preferred pronouns,” the court reasoned this is not viewpoint discrimination because transgender students “experience the use of non-preferred pronouns as dehumanizing and humiliating” whereas their classmates are not “similarly debilitated.” Thus, Judge Stranch reasoned, the district distinguished between “divisive and non-divisive speech” rather than discriminating based on viewpoint. Additionally, while the court acknowledged that school officials may not “silence viewpoints based on offensiveness,” the majority argued that school officials may “regulate how potentially offensive viewpoints are expressed.”
Looking to the overbreadth claims, the court first analyzed the anti-harassment policy. To strike down a regulation as overbroad, its “unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the [regulation’s] lawful sweep.” The majority reasoned that the anti-harassment policy, which prohibits “discriminatory harassment” based on a protected status, is not overbroad because the definition of harassment is “tied directly to [Tinker’s] substantial disruption standard.” Additionally, the court reasoned that the policy’s prohibition of bullying was not overbroad. While the majority recognized that the term “discomfort” in the definition of bullying could be read to prohibit some constitutionally protected speech, it argued that because discomfort is “categorized with humiliation” and the provision limiting discipline to speech or conduct that is “systematic and chronic” and “severe or pervasive,” the speech the policy improperly prohibits is not “substantially disproportionate to the [regulation’s] lawful sweep.”
The majority then looked to the Personal Communication Devices Policy. While the court acknowledged that a broad reading of the prohibition of anything that “can be construed as . . . disparagement of others” could allow the district to discipline students for “social media posts disparaging a politician’s political beliefs” or “a text sent that could embarrass someone,” the court held the policy governs enough speech that it may constitutionally restrict that it is not overbroad.
Next, the majority turned to the two challenged Code of Conduct provisions. First, the court discussed the discriminatory language provision, noting that the provision “contains no severity requirement and does not tie its prohibitions to Tinker’s substantial disruption standard.” While recognizing that the provision prohibits some constitutionally protected conduct, the court stated, without justification, that PDE had not met its burden to show likelihood that the provision “prohibits substantially more protected than unprotected speech.” Next, the court analyzed the prohibition of harassment, intimidation, or bullying. Because the provision only prohibits “targeted, severe-or-pervasive conduct that affects other students’ educational environments,” the court held PDE had not demonstrated the provision is overbroad.
To close, the court analyzed the remaining preliminary injunction factors. The majority found that while the likelihood-of-success inquiry is dispositive, “the remaining preliminary injunction factors further demonstrate that the district court did not abuse its discretion in denying PDE a preliminary injunction.” First, the court determined that because the policies are generally limited to conduct the school can prohibit and because the school district has stated that its policies do not prohibit speech about gender identity, harm is not “likely” or “immediate.” The court also found that because the policies have been in place since 2013, the delay “undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief.” The court then analyzed the final two factors—balance of harms and the public interest—which “merge when the Government is the opposing party.” Because the court determined the policies are not unconstitutional, it reasoned that it would not “prevent harm or be in the public interest” to enjoin them, particularly because doing so would invalidate policies that ban unprotected harassment.
Judge Batchelder dissented. First, she argued that the policies unconstitutionally compel students to “speak in a certain way.” Looking to Meriwether v. Hartop, Judge Batchelder reasoned that requiring students to refer to others by their “preferred pronouns” carries a message, and thus compels students to affirm that message. She additionally stated that the district’s compromise that these students can use students’ first names instead of their “biological pronouns” does not cure the policies, as it would “still force students to fundamentally alter the message they wish to send.”
Next, Judge Batchelder reasoned that the policies’ prohibition on students using “biological pronouns” is an impermissible viewpoint-based restriction. This is because they censor student speech based on the message the students want to communicate. Judge Batchelder reasoned that the argument that the restrictions “appl[y] equally to individuals on either side of a given debate” does not fit here, as “[o]ne side of the issue loses nothing.” Additionally, she argued it was viewpoint-based discrimination because the district must look to the intended message of a student’s speech “to determine whether that student has referred to another using biological pronouns instead of preferred ones.” Judge Batchelder then reasoned that even if the policies were content-neutral, the government must still show that the restrictions satisfy Tinker’s substantial disruption test to justify banning speech. She explained that “undifferentiated fear” that disruption could occur is not enough to justify speech limitations, and the district did not provide any evidence that using “non-preferred pronouns” would cause disruption at the school.
Last, Judge Batchelder determined that while “notable portions of the policies fail constitutional scrutiny,” plaintiffs’ overbreadth challenge is unsuccessful because the policies’ unconstitutional applications are fewer than their constitutional applications. But, she argued, “its compelled-speech, viewpoint-discrimination, and Tinker-standard challenges provide it with sufficient likelihood of success on the merits.” To conclude, Judge Batchelder reasoned that the remaining preliminary injunction factors favor plaintiffs because the students are undergoing injury to their First Amendment rights, as their speech is chilled.
Leaving aside the contested issue of whether policies prohibiting the use of “non-preferred pronouns” are constitutional, the court wrongly upheld overbroad policies that permit the school district to punish large swaths of protected speech. Specifically, the court erred in not analyzing the many applications of the Personal Communication Devices Policy and the discriminatory-language provision in the Code of Conduct, which sweep in far more protected speech than speech the district can lawfully prohibit, making the policies facially overbroad.
PDE’s overbreadth challenge argued that each policy is unconstitutionally overbroad, purporting to allow the school to punish constitutionally protected speech. Under overbreadth doctrine, school policies are analyzed in the same manner as laws. In Moody v. NetChoice,the Supreme Court recently clarified how courts should analyze a facial challenge. Outside of the First Amendment context, “a plaintiff cannot succeed on a facial challenge unless he ‘establish[es] that no set of circumstances exists under which the [law] would be valid,’ or he shows that the law lacks a ‘plainly legitimate sweep.’” In the First Amendment context, however, the question is whether “a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Therefore, “even a provision with ‘a plainly legitimate sweep’” may be invalidated in full. The First Amendment context is different because free expression needs “breathing space . . . to survive.” But the standard remains high, as the law may only be struck down if its “unconstitutional applications substantially outweigh its constitutional ones.”
Although adults enjoy far more First Amendment rights than children, the Supreme Court has made clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That does not mean students enjoy the full range of First Amendment rights on campus. Instead, the Court has acknowledged “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Balancing these interests, to justify restricting student speech, a school must show the speech is a “substantial disruption” that is so pervasive it “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
Off-campus, “the leeway the First Amendment grants to schools in light of their special characteristics is diminished.” In Mahanoy Area School District v. B.L., the seminal off-campus free speech case, the Supreme Court outlined three factors of off-campus speech that often “distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” These factors are: (1) “in relation to off-campus speech,” a school “will rarely stand in loco parentis”; (2) regulating both off-campus and on-campus speech “include all the speech a student utters during . . . [a] day”; and (3) because schools are “nurseries of democracy,” “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” Thus, public schools’ interest in regulating speech off-campus is “diminished.”
While the standard for regulating speech is high for school officials, the bar for striking down a regulation as facially overbroad is also high. Two of the challenged policies, however, meet that bar. First, the PCD policy is overbroad because it applies both on- and off-campus and uses imprecise language when outlining the speech it prohibits, leading it to ban large swaths of protected speech. “The first step in overbreadth analysis is to construe the challenged statute.” The PCD policy bans the use of a “personal communication device,” like a cell phone or computer, “in any way that might reasonably create in the mind of another person an impression of being threatened, humiliated, harassed, embarrassed or intimidated.” The policy additionally prohibits students from using their “personal communication devices” to “transmit material that is threatening, obscene, disruptive, or sexually explicit or that can be construed as harassment or disparagement of others based [on a protected characteristic or their] political beliefs.”
The broad language of the PCD policy plainly prohibits any general speech expressed through a personal communication device that could “reasonably create in the mind of another person an impression of being . . . humiliated [or] embarrassed . . . .” Because the policy does not limit that language through targeting or “severity requirement[s],” this policy includes any speech that someone heard, read, or was told about that relates to any topic that makes another feel “embarrassed.” The policy does not include a requirement that the speech be targeted at or sent to the individual who it embarrasses. Additionally, the policy seeks to ban distribution of all “disruptive” material without providing a definition or tying the term back to the “substantial disruption” standard set out in Tinker. It also bans all speech that “can be construed as harassment or disparagement of others”—without requiring that that speech constitutes properly defined harassment or that it is “substantially disruptive.” The PCD policy additionally applies to use of personal communications devices off-campus. Because the policy regulates both on- and off-campus use of such devices, it purports to control students’ expression through their personal communication devices “during the full 24-hour day,” including on the weekend.
The second step of overbreadth analysis is to determine whether the statute bans “a substantial amount of protected expressive activity.” While the school may legitimately prohibit on-campus speech that is properly defined as threatening, harassing, or intimidating, it may not constitutionally ban speech that is solely humiliating or embarrassing. The impact of the PCD’s ban on humiliating or embarrassing speech is further felt because the policy does not require that the school have reasonably “forecast[ed] substantial disruption of or material interference with school activities,” as required for punishment under Tinker. The policy additionally does not require speech to be “actionable harassment” but instead allows administrators to punish any speech that “can be construed” that way, again with no “substantial disruption” requirement. That perspective is problematic, as individuals without a knowledge of the law generally do not know what “actionable harassment” constitutes. Here, if the school or an individual “construe[s]” speech as harassment, that is enough on the face of the policy. Because the policy also prohibits speech that “can be construed as . . . disparagement of others based [on]” a protected characteristic or their political views, it additionally sweeps in almost all political discussions that involve criticism and many discussions about matters of public concern, like sexual harassment (sex or gender), affirmative action (race or color), or foreign policy (ancestry or national origin). In an age when young people are using technology more than ever before, especially as a presidential election looms, students will likely be “disparaging” political candidates, strangers they disagree with, and even family members for their political views using their “personal communication devices.” “Political speech” is at the “core” of the First Amendment, and certainly cannot be punished by the school district without “substantial disruption.”
Worse, the PCD policy also applies off-campus. The Sixth Circuit has previously held that “schools generally cannot regulate ‘speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern.’” The Sixth Circuit additionally explained that the school can punish “serious or severe harassment” of students or teachers “so long as . . . the speech substantially disrupted classwork.” But the PCD policy bans any speech that could “create . . . [the] impression” in any person’s mind—not just those related to the campus—of “being threatened, humiliated, harassed, embarrassed or intimidated.” Under a plain reading of the policy, the school could punish a student who “embarrass[es]” their sibling who attends another school by posting about them on the internet. Students could also be punished for “disparaging” a politician because they disagree with “their political beliefs.” Under Sixth Circuit and Supreme Court precedent, the school may only lawfully involve itself if the off-campus speech “substantially disrupt[s]” school operations. Thus, the policy’s prohibition on any speech causing any individual to feel “threatened, humiliated, harassed, embarrassed, or intimidated” without a “substantial disruption” requirement sweeps in a lot of speech that the school cannot lawfully regulate.
Like the law in United States v. Alvarez, which prohibited falsely representing yourself as having been awarded a medal authorized by Congress for the military, this policy prohibits statements “made at any time, in any place, to any person.” The one limiting construction is that the statements must be made on a “personal communication device,” but that could include statements made on social media, through text or call, or even written in a “notes” app. While the school can constitutionally prohibit some speech banned in the policy—for example the transmission of “obscene” material and properly defined harassment—the school failed to narrow the policy by properly defining lawfully prohibited speech, instead using broad terms like “might reasonably create in the mind of another person an impression of” and “can be construed as.” The school additionally did not limit itself to punishing speech that causes a “substantial disruption,” as required under both Tinker (for on-campus speech) and Mahanoy (for off-campus speech). Thus, given its lack of tailoring, the policy prohibits substantially more protected speech than speech that can properly be punished and is facially overbroad.
Second, the discriminatory language provision of the Code of Conduct is similarly problematic. Like the PCD policy, the discriminatory language provision does not require the prohibited speech to be targeted toward any group—it blanketly prohibits language that is “derogatory toward an individual or group.” As the majority acknowledged, the “provision contains no severity requirement and does not tie its prohibitions to Tinker’s substantial disruption standard.” The lack of narrowing language allows the school to prohibit any comment or joke that a student makes that relates to race, sex, or another protected status. Because the policy blanketly prohibits “verbal or written . . . slurs that are derogatory toward a group,” if a student reads aloud or writes down a portion of a book—for example, the Adventures of Huckleberry Finn—and that passage contains a slur, they could be punished. As the ACLU argued in its amicus brief, the policy would “bar a joke that began, ‘a priest, a rabbi, and an imam walked into a restaurant’—almost no matter how it ended.” If seen as “derogatory” toward a sex, the policy would bar the common question “Why Are All Men Trash?” It would similarly ban imprecisely stated criticism of China or Russia that could be seen as “derogatory” toward a group based on national origin or ancestry. Individuals could also not make disparaging comments about their own race, sex, religion, or country of origin, as the policy’s ban is not limited to those intending to disparage that group. Because the policy bans disparaging comments about an individual based on “genetic information,” it would even prohibit someone conceived through an egg or sperm donor from criticizing their parents’ choice to do so—as that could be disparaging to themselves or their parents.
While the school could punish the aforementioned speech if it were likely to be “substantially disruptive,” the policy does not limit the school in that way. And, as the ACLU argued in its amicus brief, “[t]here are any number of scenarios where language might be ‘derogatory’ or disrespectful but poses no actual threat of a hostile environment or substantial disruption.” This provision’s overbroad language appears to limit speech based on “a mere desire to avoid the discomfort and unpleasantness that always accompan[ies] an unpopular viewpoint.” That is not permissible under the First Amendment. While the majority reasoned plaintiffs did not prove that this provision prohibited substantially more protected speech than speech the district could regulate, without a severity or targeting requirement in this provision, just about all of the speech it purports to regulate remains protected.
By not considering the numerous unconstitutional applications of the PCD policy and discriminatory language provision, the panel did not analyze the full sweep of the law and sanctioned the “chilling effect” such overbroad policies have on students. Additionally, the court did not recognize the sheer reach of the PCD policy in that it applies off-campus—creating numerous additional unconstitutional applications that the court did not fully analyze. While it is true that administrators must have the ability to regulate the educational environment, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.” By refusing to enjoin these policies, the Sixth Circuit allowed the Olentangy Local School District to severely limit students’ First Amendment rights within the “schoolhouse gate” and beyond.
[1] The policy defines harassment as “any threatening, insulting, or dehumanizing gesture, use of technology, or written, verbal or physical conduct directed against a student or school employee” that “places a student or school employee in reasonable fear of harm to his/her person or damage to his/her property; . . . has the effect of substantially interfering with a student’s educational performance, opportunities, or benefits, or an employee’s work performance;” or “has the effect of substantially disrupting the orderly operation of a school.”
[2] The policy prohibits bullying, which becomes “unlawful harassment” when a student or another individual “systematically and chronically inflict[s] physical hurt or psychological distress” on another based on a protected characteristic. It additionally defines bullying as “any unwanted and repeated written, verbal, or physical behavior . . . that is severe or pervasive enough to create an intimidating, hostile, or offensive educational or work environment; cause discomfort or humiliation; or unreasonably interfere with the individual’s school or work performance or participation.”
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