Supreme Court Case: Mahoney Area School District v. B.L.

In this Supreme Court case, Mahoney Area School District was sued by a student, B.L., for violating her First Amendment right to free speech. The case involved B.L.'s suspension from the cheer team due to her off-campus social media posts. The court ruled 8-1 in favor of B.L., stating that the school's interests did not justify regulating her off-campus speech.

• Supreme Court
• First Amendment
• Free Speech
• School District
• Student Rights

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1. Northern California Title IX Administrators Network Elizabeth Trayner, Ed. D., Title IX Coordinator, University of the Pacific (She, her, Hers) July 26, 2021

2. Discussion Welcome! Please introduce yourself in the chat! Summer To Do List 2020 Regulations: A year later

3. OCR T9 Q&A On July 20, 2021 OCR issued new Questions and Answers on T9 Regulations on Sexual Harassment This guidance clarifies how OCR interprets schools existing obligations under T9 The Q&A does not have the force of law but is meant to be helpful in interpreting the 2020 regulations Q&A doesn t include anything unexpected OCR still in the process of reviewing the 2020 regs and considering revisions Until then 2020 regs remain in full force and effect https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

4. Case Updates

5. Supreme Court of the U.S. Mahoney Area School District vs. B.L. BL was a student at Mahoney Area High School BL tried out for the varsity cheer squad and did not make it BL posts to snapchat F school, F cheer, etc. Students report to the incident to staff and BL is suspended from the J.V. cheer team for one year After unsuccessfully attempting to have the punishment reversed BL and her parents sue Mahoney USD alleging violations of her First Amendment right to free speech

6. Supreme Court of the U.S. Mahoney Area School District vs. B.L. Specific allegations: 1. That her suspension from the team violated the First Amendment; 2. That the school and team rules were overbroad and viewpoint discriminatory; and 3. That those rules were unconstitutionally vague. District court issued summary judgment in favor of BL U.S. Court of Appeals for the Third Circuit Affirmed Supreme Court agrees issuing an 8-1 decision in favor of BL

7. Supreme Court of the U.S. Mahoney Area School District vs. B.L. Does the First Amendment prohibit schools from regulating off campus speech? It depends Previous cases have set out very specific parameters for when schools can regulate speech (e.g. speech that materially disrupts classwork or invasion of others rights) Here: no threats to others, no disruption, she was under parents responsibility when comments were made, not the schools Held: While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L. s interest in free expression in this case.

8. Smith v. Bd of Trs. Of Univ. of N. Colo. (D. Colo 2021) Plaintiff alleges he was unjustly suspended from the University of Northern Colorado based on a false accusation of sexual misconduct and a biased investigation by defendant Plaintiff alleges that sexual contact stopped once he became unsure if he had consent Ms. Doe filed a complaint with UNC s T9 coordinator a few days later Plaintiff alleged that he wasn t properly notified of the hearing Plaintiff was found responsible and suspended until 2022 Plaintiff appeals

9. Smith v. Bd of Trs. Of Univ. of N. Colo. (D. Colo 2021) Plaintiff files complaint and alleges gender discrimination. Specifically that: his sanction was incommensurately harsh, that UNC misapplied the "preponderance of evidence" standard, and that the procedural irregularities which he encountered, as well as his ultimate suspension, were motivated by anti-male gender discrimination Defendant files motion to dismiss failure to state a claim Court use 3 step test Prima facie case for discrimination sex was a motivating factor Burden shifts non-discriminatory reason Non-discriminatory reason was pretextual

10. Smith v. Bd of Trs. Of Univ. of N. Colo. (D. Colo 2021) Plaintiff alleges a slew of procedural irregularities (e.g. failure to give proper notice of hearing Plaintiff also alleges that UNC was facing external pressure from a local newspaper after they wrote an article criticizing UNC s T9 process Court grants defendant s motion As troubling as it may be that UNC is apparently willing to embrace the explanation of anti-respondent bias, that bias is neither illegal nor discriminatory when it comes to Title IX's prohibition on gender discrimination.

11. Boermeester v. Carry Pending This case is currently being reviewed by the CA Supreme Court Involves the expulsion of a USC student for intimate partner violence following a T9 investigation and hearing T9 Coordinator held two separate evidence hearings for complainant and respondent Respondent alleged several procedural violations against USC Court found in favor of USC for each alleged procedural violation except one the hearing did not meet the requirements of fair process

12. Boermeester v. Carry Pending The court s review of the case is expected to provide long-awaited clarity on a key issue involving the student disciplinary process The extent of an accused student s right to receive the opportunity to cross-examine critical witnesses at an in-person hearing when facing disciplinary action.

13. Case Studies

14. Something Alarming An instructor reported that a student disclosed something alarming in an assignment for human sexuality. From the student s description, the instructor (who teaches about affirmative consent) believed that a sexual assault occurred in one of the classrooms on campus. The instructor had tried twice to reach the student to check-in, but the student did not respond. The instructor calls you for guidance about reporting. Under your reporting structure, only managers are Officials with Authority with responsibility to report to the Title IX Coordinator. Faculty are not required to report incidents to the Title IX Coordinator, but they are encouraged to connect students to the confidential Title IX Campus Advocates. The instructor understands this process, but since they believe that a sexual assault has occurred on campus, they are concerned about campus safety and feel that the Title IX Coordinator should be involved. What would you do? What information would you gather to evaluate next steps? What questions should you be asking?

15. Something Alarming (Part II) After talking to the instructor, you learn that the student was writing about an exciting sexual experience. The student did not identify as a survivor of sexual assault. The student did not mention consent, but the instructor believes that a sexual assault, or some form of non- consensual activity occurred on campus. How would you proceed?

16. Public Misgendering and Deadnaming Chris comes to the Title IX Office to report that he is being publicly misgendered and deadnamed during his class with his Communications Professor. The professor has been very vocal in class and on social media that there are only two genders. The professor refuses to use the names and pronouns with which Chris identifies and believes that Academic Freedom allows him to act accordingly. The professor also holds the belief that there are legal reasons to use Chris deadname. What approach would you use at the Title IX Coordinator?

17. Breaking up is hard to do Susie broke up with Ling earlier in the semester and asked that he leave her alone. Ling did not take this well and has been texting her, speaking with her friends, and waiting outside of her classes for well over a month. As a result, the Title IX Coordinator put a no contact order in place as a Supportive Measure. Ling struggles with the o contact order and has been telling friends that it s just a misunderstanding and that nothing will stop their love if she would just listen, she would realize that we were meant to be together. Ling decides to pitch a tent outside of Susie s residence hall. He then sent her a private message on social media with a photo of him burning pictures of the two of them from their time that they dated. She also learned about Ling s comments and, out of fear, filed a formal Title IX Complaint. Susie is so distraught that she decides to start commuting from her home which is half an hour from campus. Susie goes to her car after class one day and finds that her tires have been slashed. Public Safety is able to provide video footage that shows Ling slashing the tires. Lisa s mom gets involved and calls the Title IX Coordinator demanding that Ling be suspended because at this point Susie no longer feels safe on campus.

18. Breaking up is hard to do Should Ling be removed on an emergency basis? Why or why not? What role should the BIT be playing? What should the Title IX Office be doing?

19. Time Goes By A Private Facebook Group for Alums begins discussing a culture of sexual harassment within a department that no longer exists. The incidents took place over 50 years ago and many of the faculty accused are now deceased. Those who are still living retired many years ago. However, one accused faculty member is alive and holds the title of Emeritus Faculty. One of the members of the group submits a report to the Title IX Coordinator. What are your first steps? Is there anything you can offer in terms of supportive measures for the Complainants?

20. Video Evidence A witness submits a video that show an interaction between the Complainant and Respondent. This video shows the Respondent pushing the Complainant and the Complainant states you hurt me. Although the Complainant participates in the investigation they do not testify during the hearing but the witness is ready to testify about the video. If this is a hearing that falls under 34 CFR 106, can the Decision Maker(s) utilize this evidence?

21. A Question of Relevance During a hearing, the Complainant s Advisor asks the Respondent Didn t you sexually assault another student last year? Your office has not received any prior reports about the Respondent and it did not come up during the course of the investigation. Is the Complainant s question relevant? Does it matter whether or not it s a case being processed under 34 CFR 106? Would your answer change if there was a finding of responsibility for the prior case?

22. Thank You These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your attorney. All attendees at the July 26, 2021 virtual meeting of the Northern California Title IX Administrators Network are hereby granted permission to post a copy of these materials to their institution s website solely for purposes of compliance with 34 CFR 106.45(b)(10)(i)(D). These materials are not intended to be used by anyone for their own training purposes. Use of this material for proprietary reasons is strictly prohibited.