Does Mahanoy apply at the College Level?
In preparing for a speech that I am giving to the Texas Association of Community College Attorneys (“TACCA”) in a couple weeks, I have been pondering whether and to what degree Mahanoy Area Sch. Dist. v. B.L. by and through Levy, 141 S. Ct. 2038 (2021) applies to students at the college level. This is not an idle question: even fifty- and thirty-plus years after they were decided, I still see courts question whether Tinker or Hazelwood should apply to college students (the general consensus seems to be that they do, while taking into account the difference in age, maturity and sophistication between high school and college students, but that is by no means a unanimous view among the courts).
At least one justice raised this issue in Mahanoy itself; as Justice Alito noted:
This case [Mahanoy] does not involve speech by a student at a public college or university. For several reasons, including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students.
Mahanoy Area Sch. Dist. v. B.L. by and through Levy, 141 S. Ct. 2038, 2049 n.2 (2021) (Alito, J., concurring). Before everyone gets too excited that we have an answer, though, remember that however popular it has become in the last 6 months to point to Justice Alito’s opinion in Mahanoy as if it has some special mystical significance, it is still just the non-majority opinion of one justice (well, two, since Justice Gorsuch also joined it). It is not the holding of Mahanoy.
This issue was raised and amplified in R.W. v. Columbia Basin College, 2021 WL 5778484 (E.D. Wash. 2021). This case has some very peculiar facts: a nursing student at Columbia Basin College (CBC) who was suffering from mental health issues underwent private therapy, and told his therapist that he had “homicidal ideations about three of his instructors at CBC, in which he imagined killing them by lighting their offices on fire and attacking them with saws.” A crisis responder notified the police about R.W.’s hostile ideations. The police notified campus security, who told the three professors. R.W. was suspended under the “Abusive Conduct” provision of the student code of conduct, which prohibits threats that have the “effect of creating a hostile or intimidating environment.” In an earlier decision, the court had determined that the sanctions violated the student’s First Amendment rights.
After Mahanoy was decided, the College asked the court to reconsider that decision. The Court determined that Mahanoy did not change its decision, based partly on its rejection of Mahanoy’s “in loco parentis” language in the college setting:
The recognition that “age” and “independence” are different in a university setting suggests that university students enjoy more First Amendment protections than school-age children. This is especially true given the Mahanoy majority’s conclusion that the special characteristics of the school environment includes “the fact that schools at times stand in loco parentis, i.e., in the place of parents.” The doctrine of in loco parentis does not apply in the university setting for independent, young adults.
The judge is right that the “in loco parentis” doctrine is rarely, if ever, applied at the college level. See Hartman v. Bethany Coll., 778 F. Supp. 286, 293 (N.D. W.Va. 1991) (“The recent trend in the caselaw is against finding an in loco parentis relationship between colleges or universities and their students.”) Because the court believed that the ideations were not a “true threat”, in that they were made to a private therapist and not to the professors in question, it reaffirmed that the student’s discipline violated his First Amendment rights.
So does Mahanoy apply, at least generally, at the college level? I think it does, for this reason: the categories of speech that the Mahanoy majority held were at least potentially subject to school regulation, even when said speech occurred off campus, were:
- serious or severe bullying or harassment targeting particular individuals;
- threats aimed at teachers or other students;
- the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and
- breaches of school security devices, including material maintained within school computers.
Mahanoy Area Sch. Dist. v. B.L. by and through Levy, 141 S. Ct. 2038, 2045 (2021). Disciplining a student for engaging in any of these types of speech, however, does not usually turn on the age, independence, and/or living arrangements of the students, and does not envision the college “stepping into the shoes” of the student’s parents. The purpose of discipline in the first two categories is to protect the person being threatened or harassed, and the purpose of discipline in the last two categories is to protect the integrity of the education offered by the entity. One could argue that a college has an even greater interest in protecting students and teachers when the person threatening them is a more mature adult (so less likely to be joking or fooling around), or when an adult student deliberately breaks into the college’s computer system or otherwise cheats, because (arguably) the age and independence of the speaker means that their threat may be more serious, and/or that they should be more held responsible for their misdeeds.
Given that Mahanoy does not really so much establish rules or tests, as it simply recognizes that schools should have authority to discipline students for at least some categories of off campus (and online) speech, the logic of Mahanoy should apply to college students, at last with regards to the categories of speech discussed above.