24-1241-cv Leroy v. Livingston Manor Central School District

United States Court of Appeals for the Second Circuit _____________________________________

August Term 2024 Argued: March 19, 2025 Decided: October 30, 2025

No. 24-1241 _____________________________________

CASE LEROY,

Plaintiff-Appellant,

— v. —

LIVINGSTON MANOR CENTRAL SCHOOL DISTRICT, JOHN P. EVANS, in his capacity as Superintendent of Schools of Livingston Manor Central School District,

Defendants-Appellees. _____________________________________

Appeal from the United States District Court for the Southern District of New York No. 7:21-cv-6008, Nelson S. Román, Judge _____________________________________

Before: PARKER, ROBINSON, and PÉREZ, Circuit Judges.

Case Leroy, a high school senior in a New York public school, took a picture with his friends and posted it on social media while outside of his school campus and after school hours. He thought his post, which showed a picture of his friend kneeling on his neck with the caption “Cops got another,” was a joke, but he quickly realized others viewed it as racist because it evoked memories of the notorious murder of George Floyd. He removed his post after a few minutes, but not before another student took a screenshot, which was reposted on other social media platforms. After public outcry, in-school discussions, an assembly, a student demonstration, and a school investigation, the school superintendent suspended Leroy and barred him from participating in non-academic extracurricular activities for the remainder of the school year. Leroy sued, alleging that the school’s disciplinary actions violated the First Amendment. The district court granted the school’s motion for summary judgment, concluding that the school did not violate Leroy’s First Amendment rights because his off-campus speech caused substantial disruption in school. We disagree. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings. Judge Pérez concurs in the judgment in a separate opinion.

_____________________________________

FOR APPELLANT: JEROME T. DORFMAN, Law Offices of Jerome T. Dorfman, Parksville, NY; ADAM EZRA SCHULMAN, Hamilton Lincoln Law Institute, Washington, D.C.

AMICUS CURIAE ARGUING FOR APPELLANT: EUGENE VOLOKH, Hoover Institution, Stanford University, Stanford, CA.

FOR APPELLEES: STEVEN C. STERN, CHELSEA WEISBORD, MARK A. RADI, Solokoff Stern LLP, Carle Place, New York. BARRINGTON D. PARKER, Circuit Judge:

Case Leroy, a high school senior in a New York public school, appeals from

a judgment of the United States District Court for the Southern District of New

York (Roman, J.). Leroy was disciplined by his school after he took a picture with

his friends and posted it on social media while outside of his school campus and

after school hours. He thought his post, which showed a picture of his friend

kneeling on his neck with the caption “Cops got another,” was a joke, but he

quickly realized others viewed it as an insensitive comment on the murder of

George Floyd. He removed his post after a few minutes, but not before another

student took a screenshot, which she reposted on other social media platforms.

The photograph then took on a life of its own. After public outcry, in-school

discussions, student demonstrations and a school investigation, the school

superintendent suspended Leroy and barred him from participating in various

school activities for the remainder of the school year.

Leroy then sued in state court, alleging that the school’s disciplinary actions

violated the First Amendment. The defendants removed the case to federal court

and, following discovery, moved for summary judgment. The district court

granted the motion, concluding that the defendants had not violated Leroy’s First Amendment rights because his off-campus speech caused substantial disruption

in school.

On appeal, Leroy contends that the district court erred because any

disruption that occurred did not deprive his off-campus speech of First

Amendment protection. In analyzing this contention, we consider (i) the nature

of Leroy’s speech, (ii) where, when, and how he spoke, and (iii) the school’s

interests in regulating that speech, in light of the features of off-campus speech

identified by the Supreme Court that “diminish the strength of the unique

educational characteristics that might call for special First Amendment leeway,”

Mahanoy Area Sch. Dist. v. B.L.,

(2021). We conclude that the school’s

disciplinary actions violated the First Amendment. Accordingly, we REVERSE

the judgment of the district court and remand for further proceedings.

BACKGROUND

On April 19, 2021, Case Leroy—then a senior at Livingston Manor High

School, in the Livingston Manor Central School District (the “District”), took a

picture in the parking lot of a dance studio with a group of friends. In the picture,

Leroy is lying on the ground next to a car, and another student is kneeling on the

2 pavement beside him. The student has his knee on Leroy’s neck and is giving a

“thumbs up” and smiling.

The context of the picture is significant: The day Leroy and his friends took

and posted the picture, a jury had just begun to deliberate in the highly publicized

trial of Derek Chauvin, a Minnesota police officer, for the murder of George Floyd.

The picture is undeniably reminiscent of footage of Chauvin next to a police car

kneeling on George Floyd’s neck, killing him. The other students involved in the

picture—the student who took the picture (Student B) and the student posing with

his knee on Leroy’s neck (Student A)—both acknowledge this resemblance, and

Student A testified the resemblance was intentional.

Leroy, however, testified that he was not aware of the resemblance until

later. In fact, he says he was not involved in the decision to stage and take this

photo at all. He testified that another friend told him that he heard a scraping

sound under his car; Leroy went to look underneath the car to see what was

causing the sound, and while he was lying next to the car, Student A came over

and knelt on his neck for the picture.

Student B, who took the picture, sent it to the others via Snapchat, a social

media and messaging app on which users can send a message directly to one or

3 more of their “friends” or can post a story that is visible to all of their “friends” for

twenty-four hours. Leroy and his friends all posted the picture to their Snapchat

stories. Leroy posted it while still in the parking lot outside the dance studio,

adding the caption “Cops got another.” Student A posted the same picture with

the Black Lives Matter logo and the caption “Another one down.” Within minutes,

Leroy’s phone started “blowing up” with messages, including what he describes

as “threat messages.” App’x 116. Leroy testified that he then looked at Student

A’s post with the Black Lives Matter logo and understood the resemblance to the

George Floyd case. Leroy immediately took down his post. He also asked Student

A to do the same, telling him that it “wasn’t right.” App’x 113. In total, Leroy’s

post was visible for about seven minutes.

As with many ill-advised social media posts, the story does not end there.

During the brief period in which Leroy’s Snapchat friends could view his post,

another LMHS student took a screenshot of the post and re-posted it on Facebook

and other platforms. Someone then re-posted the image along with commentary

suggesting that the image belied the claim that Livingston Manor had “surpassed

its dark history of being a Sundown Town with its own KKK Chapter.” App’x

332, 357. That post with commentary was itself re-posted, this time with a caption

4 urging people to reach out to the school and providing contact information. Many

people did reach out to the school to complain about the pictures. In total, school

officials received twenty-three emails about the pictures, some identifying the

students in the pictures, some labeling the behavior racist, some stating that it

would make students feel unsafe, and many urging the school to take disciplinary

action and hold the students accountable for their conduct.

Appellant John P. Evans, the District’s Superintendent, and Shirlee Davis,

the school’s principal, asked Leroy and the other students involved not to come to

school the next day, which Evans said was “for their own safety.” App’x 473–74

¶ 9. The school also asked the students who had been involved and their parents

to meet with Evans and Davis, who questioned them about the posts.

The posts were a heated topic of conversation throughout the school. Staff

and teachers held in-class discussions with students. The school planned an

assembly for students in grades 7 to 12 to address the posts, scheduling the

assembly at the same time as a planned student demonstration. After the

assembly, the high school guidance counselor, Christian Towsley, and Evans

supervised the demonstration, in which participating students knelt for nine

minutes to symbolize the time Derek Chauvin held his knee on George Floyd’s

5 neck. After the demonstration ended, Towsley supervised a follow-up discussion

about the photos, racism, insensitivity, and George Floyd. Law enforcement

officers were on school grounds throughout the day.

The response to the posts extended beyond the April 20 activities. Evans

released an official statement to the school community, posted on the District’s

website, in which he stated that the District was investigating the matter. On April

21, News12 carried a story about the posts. And the next month, the District held

two days of training regarding implicit bias.

The District also launched an investigation into the posts, beginning with

the student interviews on April 20. On April 21, 2021, Leroy was suspended from

school for five days—the maximum amount of time the school could suspend him

under state law without holding a hearing. The same day, the District hired

Bethany Centrone, legal counsel for Capital Region BOCES, to investigate the

matter. She issued a report two days later concluding that there was sufficient

evidence to determine that the students involved with the posts engaged in

behaviors that violated the District’s Code of Conduct and recommended that the

students be referred to a Superintendent’s hearing to determine if additional

discipline was warranted.

6 Based on that recommendation, Evans charged Leroy with violations of the

District’s Code of Conduct for “posting racially offensive material on social media

on or about March 25, 2021 and April 19, 2021 which resulted in a substantial

disruption to the school environment.” App’x 456. The District held a hearing on

April 27, 2021, at which Leroy testified under oath, as did Evans.

When asked about disruption, Evans testified about the “emails and

communications sent to both the superintendent and the principal from students,

from staff, from people both inside of the community and outside of the

community.” App’x 278. He also discussed the “ongoing discussion among

students throughout pretty much 7 to 12” the following day that was “kind of a

buzz up the building,” and the planned student demonstration and the assembly

the school held “[k]ind of as a counter measure to that.”

Evans testified that

the assembly was “about a 15 to 20-minute conversation,” after which he “then

sent students back to class,” and that “[s]everal students stayed after,” and

“spen[t] a few minutes in the gym afterwards for their protest I guess.” App’x 279.

The next day, the hearing officer, Kate Reid, issued Findings of Fact and

Recommendations calling for Leroy’s suspension through May 21 with the option

to return earlier if he signed a student contract agreeing to the proposed

7 suspension. In particular, Reid found that Leroy had violated two provisions of

the Code of Conduct that prohibited “[e]ngaging in any willful act which disrupts

the normal operation of the school community” and “[e]ngag[ing] in off-campus

misconduct that interferes with, or can reasonably be expected to substantially

disrupt the educational process in the school or at a school function.” App’x 461.

Evans suspended Leroy through May 21, 2021, and barred him from

participating in all extracurricular activities for the remainder of the school year.

Leroy was prohibited from playing football and baseball, going on the senior class

trip, and attending the senior breakfast, the senior prom and graduation. Leroy

returned to school on May 10, 2021, after he signed a contract of conduct that

included assurances he would “participate in any recommended Restorative

Justice, Diversity, Equity and Inclusivity training opportunities offered or

coordinated by the district.” App’x 468. Leroy appealed Evans’ decision to the

Board, which affirmed the decision.

Leroy then sued the District and Superintendent Evans (“Defendants”) in

state court. After the New York State Supreme Court granted him limited

injunctive relief, Leroy was allowed to attend his high school graduation.

Defendants then removed the case to the Southern District of New York.

8 Following discovery, Leroy moved for partial summary judgment and Defendants

cross-moved for summary judgment in full. The district court granted

Defendants’ motion and denied Leroy’s motion. The district court concluded that

Defendants’ disciplinary actions did not violate the First Amendment because the

speech fell “outside of the First Amendment’s ordinary protection” due to the

“substantial disruption” Leroy’s posts had caused. Leroy v. Livingston Manor

Central School District,

, at *10 (S.D.N.Y. April 5, 2024). The district

court entered a final judgment and Leroy appealed.

DISCUSSION

It is well-settled that students do not “shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate,” but that those rights are

“applied in light of the special characteristics of the school environment.” Tinker

v. Des Moines Independent Community School District,

(1969). Nor

does the school environment toggle on and off based on a school campus’s

geographical boundaries; rather “the school’s regulatory interests remain

significant in some off-campus circumstances.” Mahanoy,

. The

boundaries of those off-campus circumstances are not always clear. Here,

9 however, we conclude that Leroy’s off-campus speech fell outside the bounds of

the school’s regulatory authority.

I. The Tinker and Mahanoy Standard

Two Supreme Court opinions guide our analysis. In 1969, in Tinker v. Des

Moines Independent Community School District, the Supreme Court addressed “the

area where students in the exercise of First Amendment rights collide with the

rules of school authorities.”

. There, several students planned to

wear black armbands to school in an effort to “publicize their objections to the

hostilities in Vietnam and their support for a truce.”

. The school, after

learning of the plan, created a targeted policy: They would ask any student

wearing an armband to school to remove the armband, and if the student refused,

they would be suspended from school until they returned without the armband.

The students wore black armbands to school as planned and were suspended.

The Supreme Court rejected the school’s efforts to suppress the students’

expression, holding that students retain their rights to free speech and expression

even in school.

. However, the Court noted, those rights are “applied in

light of the special characteristics of the school environment,” and are therefore

subject to some limitations within the school context.

The Court reasoned that

10 “conduct by the student, in class or out of it, which for any reason—whether it

stems from time, place, or type of behavior—materially disrupts classwork or

involves substantial disorder or invasion of the rights of others is . . . not

immunized by the constitutional guarantee of free speech.”

.

In Mahanoy Area School District v. B.L., the Supreme Court applied this

framework to off-campus speech. There, a student—referred to as B.L.—who was

upset at not making the varsity cheerleading team posted an image on her

Snapchat story showing her and a friend “with middle fingers raised,” with the

caption: “Fuck school fuck softball fuck cheer fuck everything.” Mahanoy,

. She posted a second blank image with the caption “Love how me and

[another student] get told we need a year of jv before we make varsity but tha[t]

doesn’t matter to anyone else?”

Another student took pictures of the posts and

shared them, “and the images spread.”

“[S]everal cheerleaders and other

students approached the cheerleading coaches ‘visibly upset’ about B.L.’s posts,”

and “[q]uestions about the posts persisted during an Algebra class taught by one

of the two coaches.”

The coaches suspended B.L from the junior varsity

cheerleading squad, finding that she had violated team and school rules by using

profanity in connection with a school extracurricular activity.

11 Asked to consider “whether Tinker . . . applies to student speech that occurs

off campus,” the Supreme Court held that “we do not believe that the special

characteristics that give schools additional license to regulate student speech

always disappear when a school regulates speech that takes place off campus.”

Mahanoy, 594 U.S. at 187–88. The Court declined to create a general rule about

what constitutes off-campus speech and when a school can regulate that speech.

. Instead, the Court “mention[ed] three features of off-campus speech

that often, even if not always, distinguish schools’ efforts to regulate that speech

from their efforts to regulate on-campus speech,” and “diminish the strength of

the unique educational characteristics that might call for special First Amendment

leeway.”

First, the Court noted that “a school, in relation to off-campus speech, will

rarely stand in loco parentis,” because “[g]eographically speaking, off-campus

speech will normally fall within the zone of parental, rather than school-related,

responsibility.”

Second, “from the student speaker’s perspective, regulations

of off-campus speech, when coupled with regulations of on-campus speech,

include all the speech a student utters during the full 24-hour day.”

Thus,

“courts must be more skeptical of a school’s efforts to regulate off-campus speech,

12 for doing so may mean the student cannot engage in that kind of speech at all.”

at 189–90. Third, “the school itself has an interest in protecting a student’s

unpopular expression, especially when the expression takes place off campus.”

This is because “America’s public schools are the nurseries of democracy,” which

relies upon the “marketplace of ideas.”

.

The Court concluded that given the different circumstances in which

questions about regulation of off-campus speech might arise, “we can, as a general

matter, say little more than this: Taken together, these three features of much off-

campus speech mean that the leeway the First Amendment grants to schools in

light of their special characteristics is diminished. We leave for future cases to

decide where, when, and how these features mean the speaker’s off-campus

location will make the critical difference.”

Mahanoy itself, the Supreme Court said, could provide one such example.

To decide whether that suspension violated B.L.’s First Amendment rights, the

Supreme Court considered three factors—(1) the nature of the speech; (2) when,

where, and how the student spoke; and (3) the school’s interest in regulating the

speech—and concluded that the school’s regulation of B.L.’s speech was improper.

at 190–93. Ultimately, the Court concluded: “It might be tempting to dismiss

13 B.L.’s words as unworthy of the robust First Amendment protections discussed

herein. But sometimes it is necessary to protect the superfluous in order to

preserve the necessary.”

.

II. The District’s Regulation Of Leroy’s Speech

We use the same considerations to assess the District’s regulation of Leroy’s

speech. First, consider the nature of Leroy’s speech. As in Mahanoy, Leroy’s

speech “did not involve features that would place it outside the First

Amendment’s ordinary protection,” because it did not amount to fighting words

or to true threats and was not obscene under the Court’s jurisprudence.

.

While several students expressed the view that Leroy’s post made them feel

unsafe, his speech did not rise to the level of a “true threat” that would fall outside

the scope of First Amendment protections. Indeed, Leroy’s post contained no

threat at all, let alone a “‘serious expression’ conveying that a speaker means to

‘commit an act of unlawful violence.’” Counterman v. Colorado,

(2023) (quoting Virginia v. Black,

(2003) (alteration omitted)). On

the contrary, his speech was “the kind of pure speech to which, were [he] an adult,

the First Amendment would provide strong protection.” Mahanoy,

.

This is merely the starting point for our analysis. Of course, if student

speech on- or off-campus did constitute a “true threat,” we would easily conclude

14 that a school could regulate or punish that speech without any need for extensive

analysis under Tinker or Mahanoy, because that speech would fall outside the realm

of First Amendment protection. But this does not mean that schools can only

regulate speech that, by virtue of the true threat doctrine or some other doctrine,

already lacks First Amendment protection. Tinker and Mahanoy make clear that

because of the “the special characteristics of the school environment,” Tinker,

, the category of speech (both on-campus and off-campus) that a school

can regulate is broader than the category of speech that lacks First Amendment

protection writ large. 1 Because we determine that Leroy’s speech would be

protected speech outside of the school environment, we proceed to assess the

circumstances of that speech and its connection to the school.

Second, we consider “when, where, and how” Leroy spoke. This, too, is

virtually identical to the speech in Mahanoy. Like B.L.’s posts, Leroy’s post

“appeared outside of school hours from a location outside the school,” he “did not

identify the school in [his] posts or target any member of the school community

with vulgar or abusive language,” and he “transmitted [his] speech through a

1Thus, just because speech does not constitute a “true threat” does not preclude a school from regulating that same speech. As discussed infra, schools may indeed have legitimate interests in regulating student speech that does not rise to the level of a “true threat” as we have defined it in the adult context but that nonetheless makes other students feel threatened or unsafe.

15 personal cellphone, to an audience consisting of [his] private circle of Snapchat

friends.”

“These features of [his] speech, while risking transmission to the

school itself, nonetheless . . . diminish the school’s interest in punishing [Leroy’s]

utterance.”

The District argues that “[s]ocial media has changed the boundaries of the

schoolhouse gates.” Appellee Br. at 43. We are cognizant that speech on social

media is inherently different than private speech. A post on social media speaks

to a much larger audience than a remark to a private or limited audience. It

therefore carries both a greater risk of transmission to the school environment—

and greater power to disrupt the school environment, including by harming other

students. But we cannot accept the contention that in today’s world, a social media

post made off-campus is equivalent to speech on campus. That is because Mahanoy

explicitly addresses social media and maintained a distinction between on- and

off-campus speech, treating the social media posts at issue there as off-campus

speech. See Mahanoy,

(holding that three features of off-campus

speech “diminish the strength of the unique educational characteristics that might

call for special First Amendment leeway”). For better or worse, social media is a

primary method of communication for students today, and allowing schools to

16 regulate all speech on social media as though it were on-campus speech risks

preventing students from “engag[ing] in that kind of speech at all.”

. The

fact that social media “risk[s] transmission to the school itself,”

, does not

automatically bring it within the bounds of the school’s regulatory authority.

True, the mass audience of a social media post, and the accompanying

consequences of such speech, may strengthen a school’s legitimate interests in

regulating that speech. But we must still be “more skeptical of a school’s efforts

to regulate” it when it occurs off-campus. See

at 189–90.

The circumstances of Leroy’s speech also lacked any meaningful connection

to the school. Leroy’s audience of Snapchat “friends” included many students at

the school, but that reflects the reality that students’ social circles are largely

composed of friends they make in school. Again, Mahanoy teaches us that the fact

that off-campus speech is directed, in part, to those friends is insufficient to

establish the required connection between the speech and the school environment.

There, B.L. spoke to an audience of Snapchat “friends” that included many other

students. And her post was about school—she complained about cheer, a school

activity, wrote “fuck school,” mentioned another student who also did not make

the varsity cheer squad, and referred to other students who had made the squad.

17

. Here, Leroy’s off-campus Snapchat post was significantly less related to

school than the posts that fell outside the bounds of school regulation in Mahanoy.

Third, we consider the school’s stated interest in regulating Leroy’s speech.

Three different interests are at play, two of which mirror those considered in

Mahanoy. The record demonstrates that the school’s decision to punish Leroy was

motivated, at least in part, by the fact that “the perception of those images, what it

depicts, is racist in nature,” and the hope that “from this experience . . . [Leroy] has

learned some valuable lessons that will serve him better down the road.” App’x

287. In his summary judgment declaration, Evans opined that “the District has a

significant interest in addressing racially offensive student speech and conduct.”

Id. at 478. In his letter to Leroy, Evans emphasized that the hearing officer’s

ultimate recommendation was intended to be “sufficient to ensure that [Leroy]

understands the seriousness of his actions” and “sufficient to deter other students

from engaging in similarly insensitive conduct.” Id. at 464.

But as in Mahanoy, the strength of the school’s interest in preventing certain

kinds of speech—there, vulgarity, and here, racially insensitive speech—“is

weakened considerably by the fact that [Leroy] spoke outside the school on [his]

own time.”

. Also, as in Mahanoy, Leroy “spoke under

18 circumstances where the school did not stand in loco parentis,” and “the school has

presented no evidence of any general effort to [prevent such speech] outside the

classroom.”

These facts convince us that Livingston Manor’s interest in

teaching racial sensitivity is not sufficient to overcome Leroy’s interest in free

expression off-campus.

Moreover, the District had other means at its disposal to teach these values

to its students, and it utilized many of them. Teachers led classroom discussions

about the posts and the issues they raised. The District held an assembly about

the same issues, facilitated a student demonstration, and led discussions for

interested students. These steps demonstrate that penalizing speech is not the only

way schools can foster important values. Often it will not be the most effective

way to do so. And, most importantly for our purposes, the other methods at the

District’s disposal do not restrict speech.

Next, the district court’s opinion and the District’s brief here rely heavily on

the District’s interest in preventing disruption. See Leroy,

, at *7–

8. They assert that Tinker means a school can regulate any speech, on or off

campus, that creates a substantial disruption or that the school reasonably believes

will create such a disruption.

But this interest was also considered and rejected

19 in Mahanoy, under similar circumstances. There, the Court found “no evidence in

the record of 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.” Mahanoy,

. Instead, “discussion of the matter took, at most, 5 to 10 minutes of an

Algebra class ‘for just a couple of days,’” and “some members of the cheerleading

team were ‘upset.’”

The Court concluded that “the alleged disturbance here

does not meet Tinker’s demanding standard.”

.

Here, too, the degree of in-school disruption does not justify restricting

Leroy’s speech. The record reflects discussions about the posts in and out of class,

leading to a fifteen-to-twenty-minute school-wide assembly and a nine-minute

demonstration by several students. We believe that this level of disruption did

not give the school the authority to punish off-campus, otherwise protected speech

that is only indirectly related to the school environment. See Tinker,

(“[T]o justify prohibition of a particular expression of opinion, [a school] must be

able to show that its action was caused by something more than the mere desire to

avoid the discomfort and unpleasantness that always accompany an unpopular

viewpoint.”); Mahanoy,

(same).

20 Nor does the kind of disruption relied upon by the school justify regulation

of Leroy’s speech. The disruption at issue was not due to Leroy’s speech alone,

but was also driven by the independent decisionmaking of others, including

fellow students, parents, and the District, in responding to Leroy’s speech. 2 Tinker

suggests that the more relevant question is “disorder or disturbance on the part of

the petitioners”—that is, disturbance on the part of the speakers themselves.

(emphasis added). This distinction is in line with the First Amendment

principles the Supreme Court sought to uphold in Tinker:

Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and

2 The concurrence takes issue with this distinction, arguing that “if the speech does cause a significant reaction, and specifically if it makes students fear for their safety and thereby disrupts learning, and the speaker recklessly provoked just that response, he can hardly complain that he is being punished for someone else’s reaction.” Concurrence at 29–30. We do not disagree. But we believe the critical distinction between that case and this one lies not in the nature or cause of any disruption, but in the need to protect students’ safety. Suppose a student posts a highly controversial political view on social media—support for an unpopular candidate, for example—knowing that it risks upsetting some of his classmates and provoking a strong reaction. We would not hold that the speaker could be penalized for the speech because he “recklessly provoked” that response. Speech that makes students feel unsafe is entirely different. As set forth below, protecting the safety of the entire school community is an important, independent school interest that may justify regulation of even off-campus speech—and perhaps even speech that does not cause an immediate in-school disturbance. For this reason, it is an interest we believe should be analyzed separate and apart from the minutes of school disruption caused by the speech. Indeed, Tinker makes clear that these are separate categories where First Amendment protections may fall away in the school context: “But conduct by the student, in class or out of it, which for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of free speech.” Tinker,

. Regardless, the concurrence does not suggest that Leroy recklessly provoked an in-school disturbance. As discussed below, the record reflects the opposite.

21 our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up in and live in this relatively permissive, often disputatious, society.

at 508–09. Tying a student speaker’s constitutional right to free expression

solely to the reaction that speech garners from upset or angry listeners cannot be

squared with those principles. The disturbance in school the day after Leroy’s

posts does not justify regulating his speech.

Finally, this appeal raises a third school interest not present in Mahanoy: a

school’s interest in protecting members of the student body from offensive speech.

Tinker recognized that in the school context, some speech may lose constitutional

protection where it involves “invasion of the rights of others.”

. In

this case, several students emailed teachers and the administration to report that

Leroy’s speech made them feel unsafe or uncomfortable. They reported that

“posts like these can make students feel unsafe in their own school,” App’x

295,“[a]ll POC students at LMCS are harmed and may even feel unsafe by the

behavior demonstrated by these two students,” id. at 307, “[t]he post had made me

feel like it came from a place of hatred and makes me feel unsafe because at the

end of the day these are people[‘s] lives and should not be treated as a running

22 joke,” id. at 313, and that they did not “feel comfortable being around classmates

who happ[ily] make light of murder,” id. at 344.

Leroy’s speech therefore implicates the first feature of off-campus speech

discussed in Mahanoy in a manner that B.L.’s speech did not. As the Supreme

Court explained, “a school, in relation to off-campus speech, will rarely stand in

loco parentis,” because off campus, the students’ “actual parents” can “protect,

guide, and discipline them.” Mahanoy,

. But when student speech

off campus makes students feel unsafe on campus, schools may have an important

parental role to play with respect to that speech. It still may not be the school’s job

to “guide” and “discipline” students for their off-campus actions, but it certainly

falls to the school to “protect” the school community by ensuring that students feel

safe at school.

We, however, are required to balance this consideration with the other two

features of off-campus speech emphasized by Mahanoy. The Court noted that “the

school itself has an interest in protecting a student’s unpopular expression,

especially when the expression takes place off campus.”

. And “from the

student speaker’s perspective, regulations of off-campus speech, when coupled

with regulations of on-campus speech, include all the speech a student utters

23 during the full 24-hour day.”

. If schools can regulate off-campus

expression because it upsets other students, they are effectively authorized to

prohibit students from expressing unpopular views—in or out of school.

This conundrum requires us to draw a line between speech that is deeply

offensive to other students—even reasonably so—and speech that threatens their

sense of security. Schools can and must protect the school community from

threats—including those that are not explicit or overt enough to rise to the level of

“true threats”—that make students fear for their safety. We do not disagree with

the concurrence’s recognition of schools’ critical responsibility to provide students

the opportunity to “learn without fear.” Concurrence at 10; see generally

Concurrence at 8–13. But schools cannot—and should not—protect the school

community from hearing viewpoints with which they disagree or engaging in

discourse with those who have offended them. We readily acknowledge that

doing so will at times be difficult. As Mahanoy emphasized, “schools have a strong

interest in ensuring that future generations understand the workings in practice of

the well-known aphorism, ‘I disapprove of what you say, but I will defend to the

death your right to say it.’”

. The ability to engage in civil discourse with

those with whom we disagree is an essential feature of a liberal education.

24 Teaching students that they can and should be sheltered from speech that offends

them is not. At bottom, schools may sometimes restrict or penalize off-campus

speech because it is threatening, but they cannot do so because it is offensive.

The line between the two will not always be clear, and getting it right is

important. Drawing the line too broadly carries significant dangers; courts cannot

simply dismiss student expressions of fear as mere offense. On the other hand,

drawing the line too close to the latter category carries a serious risk of chilling

students’ expression of unpopular opinions or any speech at all on sufficiently

controversial topics. After all, as much as we may hope that students will be

attuned to the sensitivities of their classmates, they may not always know how

their speech will be perceived by others. Here, for example, crediting Leroy’s

testimony, he did not understand the offensive implications of his post. And as

soon as he did, he took it down and urged his friends to do the same. If schools

can punish such speech even when it occurs off-campus, we see a real risk of

deterring students from coming anywhere near controversial topics. We are called

on to avoid such a chilling effect, even when doing so “shield[s] some otherwise

proscribable” speech. Counterman,

. The risk of chilling students’

constitutionally protected speech counsels caution, particularly when it comes to

25 off-campus speech. In so stating, we do not suggest “that student feelings can be

dismissed as mere offense, not fear.” Concurrence at 14. Rather, we acknowledge

the significant and competing considerations that must inform a school’s

decisionmaking.

Although we recognize that adopting a bright line test here would aid

schools in making these difficult determinations in future cases, we do not believe

we can or should set out an exhaustive list or a broad rule about what speech falls

on the “protected” side of the line as opposed to the “proscribable” side of the line.

See Mahanoy,

. Our responsibility is to decide the case before us, and

we do not presume to envision, much less account for, every other complex

scenario schools may face.

Here, we conclude that the interest in protecting students on campus does

not justify the District’s response to Leroy’s speech for two primary reasons.3

First, the record is devoid of any indication that protecting students’ sense of

security was the District’s interest in punishing Leroy. To the contrary, the hearing

3We do not suggest that these are the only relevant considerations. For example, we agree with the concurrence that “the broader context of the school community is particularly important to how a student would perceive the speech,” and that “if there had been a recent pattern of harassment against a school’s small Black student population, then a student might reasonably be more likely to see a given incident as another act in that pattern.” Concurrence at 15.

26 officer’s recommendation was based on the desire to “impose a penalty that is

sufficient to ensure that [Leroy] understands the seriousness of his actions and that

is sufficient to deter other students from engaging in similarly insensitive

conduct.” App’x 462. Evans’ Affidavit below explained that he “believe[s] the

District has a significant interest in addressing racially offensive student speech

and conduct.” Id. at 478. These statements express a desire to punish the speech

because it was viewed as offensive—not because it was viewed as threatening or

because it made other students fear for their safety.

Second, the record is clear that Leroy did not intend to threaten, bully, or

harass any other students. It is undisputed that Leroy removed the picture from

his Snapchat story within minutes, as soon as he learned how people were reacting

to it. Id. at 95–97, 112–19, 215–18, 553–54. It follows that Leroy did not want to

provoke that reaction. 4

In sum—balancing (i) the nature of Leroy’s speech; (ii) when, where, and

how he spoke; and (iii) the school’s interests in teaching racial sensitivity, in

preventing disruption in school, and in protecting the school community—we

4The concurrence would insert a finding of intent as a prerequisite to regulating student speech off-campus that makes other students feel unsafe. We decline to engage with that proposal because we need not adopt such a rule to resolve this case and because we are mindful of the Supreme Court’s reluctance to adopt any bright line rules in Mahanoy.

27 conclude that the school’s interests here do not justify the regulation of Leroy’s

speech, which otherwise would be protected by the First Amendment.

CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the district court

and REMAND for further proceedings.

28 24-1241-cv Leroy v. Livingston Manor Central School District

MYRNA PÉREZ, Circuit Judge, concurring:

In our public schools, off-campus speech has on-campus consequences.

That is only becoming more true as students increasingly live their lives and

interact with their classmates online. What students say and do to each other off

campus can be distracting during the school day, and figuring out how students

can still learn together under those circumstances is a big part of what schools do.

But when students are threatened, bullied, harassed, or otherwise made to fear for

their safety off campus, they carry that fear with them to school the next day too.

Schools must then decide in real time, without the time and space enjoyed by

courts, how to respond to student speech, including sometimes with punishment.

This case arose out of one such decision to punish off-campus student

speech, made by the Livingston Manor Central School District (the “District”). The

majority opinion concludes that the District overstepped its authority in this case

but does not, in my view, sufficiently explain to schools or district courts precisely

why. While I see this as a close case, I concur in the judgment of the Court that the

District’s severe punishment of Case Leroy in this instance was not consistent with

the First Amendment. I write separately because I believe the Supreme Court has given us more guidance as to how future courts should apply the First

Amendment to off-campus student speech than the majority opinion suggests.

I.

Our public schools bear a heavy burden to educate all of the students in their

charge, and so they have a “compelling interest in having an undisrupted school

session conducive to the students’ learning.” Mahmoud v. Taylor,

,

2362 (2025) (quoting Grayned v. City of Rockford,

(1972)). But

schools also have to give students the space to express themselves and learn from

others’ reactions, on and off campus. Schools are thus tasked with sorting student

speech that is merely annoying, provocative, or offensive, from that which

“materially disrupts classwork or involves substantial disorder or invasion of the

rights of others.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

(1969). Schools operate in the shadow of the First Amendment, but just as

students do not “‘shed’” their rights “‘at the school house gate,’” nor do schools’

interests “always disappear” when speech “takes place off campus.” Mahanoy

Area Sch. Dist. v. B. L.,

, 187–88 (2021) (quoting Tinker,

).

Mahanoy was the Supreme Court’s first foray into school regulation of “true

off-premises student speech.”

(Alito, J., concurring). By the Court’s

2 own admission, it declined to “set forth a broad, highly general First Amendment

rule” to govern future off-campus student speech cases, and instead it left “for

future cases to decide where, when, and how” a student “speaker’s off-campus

location will make the critical difference” in whether school regulation comports

with the First Amendment.

at 189–90 (majority opinion). But in lieu of a simple

rule or test, the Supreme Court gave us “one example” of speech that had too little

connection to school to be regulated and some general principles, from which I

believe we can derive a more coherent approach for future cases.

Those principles can be summarized in four essential guideposts for First

Amendment cases like this. First, schools can regulate at least some speech that

occurs truly off campus,

at 188–90—that is, that speech that occurs outside of

any “temporal or spatial extension of the regular school program.”

(Alito, J., concurring). 1 Second, Tinker applies meaningfully off campus, meaning

1 See

(listing, as examples of settings that schools can likely regulate in a manner similar to the actual school day, “online instruction at home, assigned essays or other homework, and transportation to and from school,” and “statements made during other school activities in which students participate with their parents’ consent, such as school trips, school sports and other extracurricular activities that may take place after regular school hours or off school premises, and after-school programs for students who would otherwise be without adult supervision during that time”);

(majority opinion) (listing (1) “the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities;” and (2) “breaches of school security devices, including material maintained within school computers;” (3) speech during “times when the school is responsible for the student;” (4) speech in “the school’s immediate surroundings;” (5) speech during “travel en route to and from the school;” (6) “speech taking place over school laptops or on a school’s website;” (7) “speech taking place 3 “schools have a special interest in regulating speech that ‘materially disrupts

classwork or involves substantial disorder or invasion of the rights of others,’” and

that interest does not “always disappear when a school regulates speech that takes

place off campus.”

at 188–89 (quoting Tinker,

). 2 Third, those

interests are somewhat diminished off campus by the need to avoid intruding on

the sphere of parents’ authority, restricting student speech 24/7, or stifling

students’ development as participants in our “marketplace of ideas.”

at 189–90

(quotation marks omitted). Fourth, despite those considerations, there is broad

consensus that “serious or severe bullying or harassment targeting particular

individuals” and “threats aimed at teachers or other students” are paradigm

examples of speech schools may regulate even if it originates off campus. Id. at

188; see also id. at 207–09 (listing similar categories as raising difficult questions).

during remote learning;” (8) speech during “activities taken for school credit;” (9) “communications to school e-mail accounts or phones;” and potentially (10) “speech related to extracurricular activities”).

2 In Mahanoy, the Supreme Court acknowledged that on campus, and in settings that are functionally equivalent to the campus, the Court has recognized “three specific categories of student speech that schools may regulate,” even when they do not cause much disruption, including “(1) ‘indecent,’ ‘lewd,’ or ‘vulgar’ speech uttered during a school assembly on school grounds, (2) speech, uttered during a class trip, that promotes ‘illegal drug use,’ and (3) speech that others may reasonably perceive as ‘bearing the imprimatur of the school,’ such as that appearing in a school sponsored newspaper.” Id. at 187–88 (citations omitted). The Court did not suggest those categories, and particularly the power to punish speech on topics that are simply inappropriate for school (e.g., sex and drugs), have any applicability to true off-campus speech. 4 Applying these general principles to the present case is not an easy task, but

I cannot join in certain aspects of the approach taken by the majority opinion. The

speech at issue here is open to interpretation, but many interpreted it as making

fun of, if not celebrating, the murder of George Floyd. The majority opinion

decides Leroy’s speech was only offensive, not threatening, bullying, or harassing,

and that it lacked any meaningful connection to the school. But this seems to be

based on the majority’s own subjective judgment and is not fully explained. The

majority opinion mentions that Leroy did not make a “true threat,” that his speech

was disseminated via social media, that the resulting disruption was caused partly

by the reactions he provoked in others rather than from his speech directly, and

that he claimed not to realize his speech was commenting on Floyd’s murder. But

it is not clear how these factor into the decision or why. If similar facts were treated

as dispositive or important in future cases, schools and courts would be led astray.

In my view, while Mahanoy did not lay down one rule for every off-campus

speech case, it nonetheless contains the elements of a coherent approach to at least

some off-campus speech cases. Specifically, Mahanoy tells us that, at a minimum,

schools can regulate off-campus speech that has the potential to disrupt student

learning in the same way threats, harassment, and bullying do—by undermining

5 students’ feelings of safety and security at school, which are basic prerequisites for

learning. And Mahanoy makes clear that neither the Tinker standard nor “true

threats” doctrine alone can draw the boundary between permissible and

impermissible regulation of off-campus speech. Schools’ Tinker interests in

preventing disruption are “diminished” off campus, Mahanoy,

, but

schools’ authority must extend further than the criminal law of true threats, since

more general threats, as well as much bullying and harassment, can materially

disrupt student learning even if they do not “communicate a serious expression of

an intent to commit an act of unlawful violence.” Mahanoy,

n.18

(Alito, J., concurring) (quoting Virginia v. Black,

(2003)). 3

Thus, applying Mahanoy in light of other precedent requires us to borrow

concepts from both. Schools may regulate off-campus speech that “materially

disrupts classwork or involves substantial disorder or invasion of the rights of

others,” Tinker,

, and specifically they may protect students “from

the disruption that fear engenders” even if not literal “fear of violence” committed

3 Crucially, the majority correctly acknowledges that its “true threat” assessment is “merely the starting point for [its] analysis” and that their assessment “does not mean that schools can only regulate speech that, by virtue of the true threat doctrine or some other doctrine, already lacks First Amendment protection.” Maj. Op. at 14–15. But as discussed herein, courts should delve deeper to determine if the nature of the speech at issue engenders disruptive forms of fear outside of the confines of a “true threat” analysis. 6 by fellow students, Black,

(quotation marks omitted). But to avoid

overstepping the limits on their power laid out in Mahanoy, they may only regulate

speech made with some degree of “intent,”

or another “culpable mental state,”

Counterman v. Colorado,

(2023). As explained below, this approach

is faithful to precedent and largely consistent with today’s majority opinion.

Under this standard, this case would be close at the summary judgment stage, but

ultimately the District’s justification for the severe punishment it imposed here

falls just short.

II.

The first part of a framework for evaluating school regulation of off-campus

speech focuses on the effect that speech must have, or be expected to have, in order

to be regulable. We know schools can regulate some, but presumably not all, off-

campus speech that materially disrupts student learning. This case does not offer

the occasion to list every kind of disruption that might justify regulating off-

campus speech. But this case typifies one kind of disruption that can support

school intervention into off-campus speech: speech that makes students feel unsafe

at school and thus less able to learn effectively. For the reasons explained below,

in the unique context of public schools, this category must not be construed too

7 narrowly, and cannot simply be coextensive with “true threats” that communicate

“serious expression[s] of an intent to commit an act of unlawful violence.” Black,

. Neither Mahanoy nor any other precedent requires such a

restrictive understanding of school authority. As discussed in the next section,

students’ liberty interests can be protected without requiring schools to bear all of

the consequences of unchecked off-campus threats, bullying, and harassment.

A.

The common thread running through threats, bullying, and harassment—

the types of off-campus speech that all generally agree must be regulable at least

some of the time—is that they disrupt student learning by causing students to fear

for their safety. While fear is not the only emotion that can disrupt learning, 4 it is

uniquely detrimental to students’ ability to learn, and it must be within schools’

power to protect both their students’ physical safety and their feelings of safety.

4 Nor do I wish to suggest fear is the only emotion that may be caused by threats, bullying or harassment, or the only one that can justify regulation of off-campus speech. This case does not present the question, for example, of when schools can regulate a “deliberate disturbance” that “may cause pandemonium in a public school” because it has an explicit nexus to the school, such as ridicule or threats aimed at teachers and administrators or speech intentionally lobbed into the school setting from off-campus and intended to cause disruption. Layshock v. Hermitage Sch. Dist.,

, 219–22 (3d Cir. 2011) (en banc) (Jordan, J., concurring) (discussing case of off-campus ridicule of school principal). See generally J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,

(3d Cir. 2011) (similar to Layshock); Doninger v. Niehoff,

(2d Cir. 2011) (addressing off-campus speech specifically encouraging classmates to disrupt school); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist.,

(2d Cir. 2007) (addressing off- campus speech that was “potentially threatening” to a teacher because it included imagery of the teacher being shot, which was not a “true threat” but still “foreseeably create[d] a risk of substantial disruption”). 8 See Morse v. Frederick,

, 424–25 (2007) (Alito, J., concurring) (“The

special characteristic [of the school setting] that is relevant in this case is the threat

to the physical safety of students . . . . During school hours . . . parents are not

present to provide protection and guidance, and students’ movements and their

ability to choose the persons with whom they spend time are severely restricted.”).

Mahanoy is clear that schools “rarely stand in loco parentis” “in relation to off-

campus speech,” but rarely is not never, and when it comes to ensuring students

feel safe at school, where parents cannot ensure their children feel safe, schools

play precisely that role. Mahanoy,

; see Maj. Op. at 22–23.

It is particularly important for schools to play this role in appropriate cases

because “[p]ublic education is a public benefit,” Mahmoud, 145 S. Ct. at 2359, and

public school occupies a unique place in the lives of children and families in the

United States. “The education of children within a specified age range is

compulsory,” and “by choice or necessity, nearly 90% of the students in this

country attend public schools,” Mahanoy, 594 U.S. at 199–200 (Alito, J., concurring).

That is largely because “alternatives can be prohibitively expensive,” Mahmoud,

145 S. Ct. at 2360. As a result, most children have to show up almost every day,

and most parents have to send them, even if both have very good reasons for not

9 wanting to do so—even if they feel unsafe. See Morse,

(Alito, J.,

concurring) (recognizing that “[s]tudents may be compelled on a daily basis to

spend time at close quarters with other students who may do them harm,” and

concluding schools can regulate “speech advocating illegal drug use” based on a

highly attenuated risk of violence). Schools are responsible, then, for offering at

least the minimal level of protection required for all students to learn without fear.

Protecting students’ safety and feelings of safety also directly implicates the

interests long ago recognized under Tinker. A growing body of research supports

any parent or teacher’s intuition that students must feel safe and secure to learn

effectively. See generally Johanna Lacoe, Too Scared to Learn? The Academic

Consequences of Feeling Unsafe in the Classroom, 55 Urb. Educ. 1385 (2020)

(discussing literature on and evidence of the relationship between feelings of

safety and academic achievement); Yuko Mori, et al., Feeling Unsafe at School and

Associated Mental Health Difficulties Among Children and Adolescents: A Systematic

Review, 8 Child. 232 (2021) (“[P]erceived school safety . . . was a strong independent

risk factor that was associated with being bullied and mental health difficulties.”).

Student safety is thus of concern to schools not only because schools sometimes

stand in loco parentis, but also because ensuring students feel safe is essential to

10 their “basic educational mission.” Hazelwood Sch. Dist. v. Kuhlmeier,

(1988) (quoting Bethel Sch. Dist. No. 403 v. Fraser,

(1986)); see

Thomas v. Bd. of Educ., Granville Cent. Sch. Dist.,

, 1058 n.13 (2d Cir.

1979) (Newman, J., concurring) (“School authorities ought to be accorded some

latitude to regulate student activity that affects matter of legitimate concern to the

school community, and territoriality is not necessarily a useful concept in

determining the limit of their authority.”). Any “threat to the physical safety of

students” implicates a “special characteristic of the school setting” that “alter[s]

the usual free speech rules.” Morse,

(Alito, J., concurring).

Obviously, if students fear their classmates will hurt them, they will be less

able to learn. But learning can also be disrupted if students believe their classmates

will callously cheer on or condone their being harmed outside of their schools.

Students come to school with all kinds of fears about how they and those they love

could be harmed inside and outside of school—whether they fear police brutality,

forcible family separation by immigration authorities, religiously-motivated

attacks on their houses of worship, sexual or gender-based violence, or any other

type of targeted state or private violence. Those fears doubtless weigh on students

as they try to learn, so they implicate the state’s “compelling interest” in

11 maintaining an environment “conducive to the students’ learning.” Mahmoud, 145

S. Ct. at 2362 (quotation marks omitted). And those fears often weigh on specific

students with specific life experiences, whether they are targeted individually or

based on membership in a group. While classmates and schools may not be

responsible for (or capable of) assuaging those worries, schools must have

authority to step in to stop them from being made worse.

Focusing on the effect these forms of speech cause, at least in the off-campus

context, also helps to resolve a critical tension inherent in regulating threats (other

than “true threats”), bullying, and harassment. On one hand, schools “not only

can” but “sometimes must, pursuant to their affirmative obligations under Title VI,

Title IX, the Rehabilitation Act of 1973, and the Fourteenth Amendment,” regulate

speech that denies students equal educational opportunities. Amicus Br. of ACLU

at 16. On the other hand, the concepts of “bullying” and “harassment” “are not

easy to define with the precision required for a regulation of speech.” Mahanoy,

(Alito, J., concurring). On campus, this concern is lessened, because

schools have more leeway to prevent and punish inappropriate in-school speech

even absent substantial disruption. See Mahanoy, 594 U.S. at 187–88; Morse,

(“[T]he mode of analysis set forth in Tinker is not absolute.”). On

12 campus then, a school ought to be able to enforce reasonable harassment and

bullying policies that “ask not whether the speech could have foreseeably

disrupted class, per Tinker, but instead whether it in fact constituted bullying or

harassment.” Amicus Br. of ACLU at 16. But applying such a policy off campus,

to “all the speech a student utters during the full 24-hour day,” would raise

concerns. Mahanoy,

. If First Amendment doctrine limited the

speech schools may punish to include only abusive speech that is expressly

targeted at one or more individuals, that would likely be both over- and

underinclusive. It would insert schools in place of parents in regulating all manner

of off-campus interactions between students, while at the same time placing broad

threats to the community at large, and harassment and bullying implicitly targeted

at vulnerable students or groups, entirely outside schools’ reach. Focusing instead

on whether speech in fact causes students to fear for their safety, inhibiting their

ability to learn and implicating the school’s compelling interests under Tinker,

strikes an appropriate balance that protects the rights of speakers and hearers, as

well as the rights of all students and their parents.

13 B.

The majority opinion and I broadly agree, then, that “[s]chools can and must

protect the school community from threats—including those that are not explicit

or overt enough to rise to the level of ‘true threats’—that make students fear for

their safety.” Maj. Op. at 24–25. But, as the majority opinion observes, schools and

courts face challenges in separating speech that causes fear, on one hand, versus

that which causes mere offense, on the other, the latter generally being insufficient

as a basis for regulating speech. See Tinker,

(“[The school] must be

able to show that its action was caused by something more than a mere desire to

avoid the discomfort and unpleasantness that always accompany an unpopular

viewpoint.”). I am sensitive to the difficulty, but I cannot join in the majority

opinion’s approach, which could be interpreted to assert that student feelings can

be dismissed as mere offense, not fear, because of the risk of too much regulation

chilling legitimate expression on controversial topics. As discussed in the next

section, I agree that there must be ample breathing space for protected speech. But

in my view, the majority opinion did too little in accounting for legitimate fears

and too summarily disposed of the school’s interest in protecting students.

14 Rather, harmonizing our First Amendment precedent requires attention

both to the objective context of the speech and the experiences of the students.

Courts can objectively evaluate whether they are dealing with speech that a

student could reasonably perceive as threatening, bullying, or harassing in

context. For example, could a Black student reasonably perceive his classmate

broadcasting a photo, apparently giving the thumbs-up to George Floyd’s murder,

as a jury begins deliberating over Derek Chauvin’s guilt, as an act of racialized

harassment? Whether speech was specifically targeted at an individual is relevant

to but not dispositive of the objective part of the inquiry. Even speech broadcast

to a wide audience can nonetheless impact certain hearers in the same way as if it

were transmitted to them directly. Cf. Mahanoy,

(observing that

school had not based its punishment of speech on “any specific negative impact

upon a particular member of the school community”). And the broader context of

the school community is particularly important to how a student would perceive

the speech. For example, if there had been a recent pattern of harassment against

a school’s small Black student population, then a student might reasonably be

more likely to see a given incident as another act in that pattern.

15 Courts and, if necessary, juries are also able to evaluate whether students’

ability to learn was in fact materially disrupted, or whether schools reasonably

forecast that their learning would be disrupted, or whether the concern was merely

over annoyance, distraction, or offense. Mahanoy,

(“[S]imple

‘undifferentiated fear or apprehension is not enough to overcome the right to

freedom of expression.’” (alteration adopted) (quoting Tinker,

)). In

sorting this out, the standard methods of evaluating credibility, such as cross-

examination, can do much of the work. Cf. Maryland v. Craig,

, 846–47

(1990) (repeating the description, attributed to Professor Wigmore, of cross-

examination as the “greatest legal engine ever invented for the discovery of truth”

(quotation marks omitted)). And giving appropriate weight to the views of school

administrators and staff can do much of the rest. Schools perform “important,

delicate, and highly discretionary functions,” albeit “within the limits of the Bill of

Rights.” West Va. State Bd. of Educ. v. Barnette,

(1943); Thomas, 607

F.2d at 1044 (“[P]rofessional educators must be accorded substantial discretion to

oversee properly their myriad responsibilities.”). In close cases, where courts may

be ill-suited to discern whether a student complaining about a classmate’s speech

16 was merely offended or felt truly unsafe, that student’s teacher, who observed her

demeanor and capacity to engage in class the next day, will have unique insight.

In short, assessing fear versus mere offense is difficult, but there is no reason

why it should defy the usual factfinding processes. I agree wholeheartedly with

the majority opinion that there must be a margin of safety around protected speech

to avoid the chilling effects that the First Amendment guards against, but that does

not require us to presumptively downplay or deny serious harms caused by

certain off-campus speech. That said, if the inquiry ended with the harm—if

schools could punish all speech that could reasonably be and is in fact perceived

as threatening, bullying, or harassing—that would severely limit the First

Amendment rights of students. The piece left out of the analysis to this point is

the mental state of speakers. That, in my view, should be a key doctrinal

protection for speakers’ rights, as it is in other areas of First Amendment doctrine.

III.

A critical safeguard that should limit schools’ authority to punish off-

campus student speech is the principle, familiar from other areas of First

Amendment law, that culpability for speech depends on the speaking student’s

mental state. Limiting punitive school regulation of off-campus speech only to

17 speech undertaken with a culpable mental state will ensure schools do not

overstep the specific limits on their power set out in Mahanoy, including by

avoiding an unconstitutional chilling effect on legitimate expression; and it will

limit the collateral harms of harsh school punishment. This approach is consistent

with precedent, and focusing on the speaker’s intent can help ensure that the

majority opinion is not read too broadly to immunize large categories of even

intentionally fear-inducing speech.

A.

In my view, schools may only punish off-campus student speech, on the

grounds that it disrupts student learning in a manner akin to threats, bullying, and

harassment, where the speaker has a culpable mental state, likely recklessness. As

the Supreme Court recently explained in Counterman v. Colorado, that is the mental

state required for states to punish true threats of violence outside the school

context, and it applies in a range of other First Amendment contexts to protect

speakers’ rights even when their speech in fact causes harm.

. Again,

schools’ authority to protect students’ safety and feelings of safety allow them to

punish more than true threats. See Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch.

Dist.,

(2d Cir. 2007) (“[S]chool officials have significantly broader

18 authority to sanction student speech than the [true threats] standard.”). But the

same reasons that support requiring recklessness in those areas apply here as well.

Like off-campus threats, bullying, and harassment directed at classmates,

“[t]rue threats subject individuals to fear . . . and to the many kinds of disruption

that fear engenders.” Counterman,

(discussing, in the threats context,

“fear of violence” specifically) (internal quotation marks omitted) (quoting Black,

). The harm caused by the speech—the reason why the government

has an interest in stopping it—“depends not on ‘the mental state of the author,’

but on ‘what the statement conveys’ to the person on the other end.”

(quoting

Elonis v. United States,

(2015)). The same is true when speech is

obscene, defamatory, or incites “imminent lawless action.”

at 73–78.

But “the First Amendment may still demand a subjective mental-state

requirement shielding some true threats from liability” in order to avoid “a

chilling effect.” Id. at 75. The majority is right to be concerned about ensuring a

margin of safety around protected student speech, and courts recognize this risk

across First Amendment law. “Prohibitions on speech have the potential to chill,

or deter, speech outside their boundaries,” because speakers may not know which

side of the line they will fall on, or how it will be adjudicated, and may “steer[]

19 wide of the lawful zone” and “self-censor[]” even protected speech as a result. Id.

at 75–76 (quotation marks omitted) (alteration adopted). By protecting speech that

a speaker honestly but mistakenly believes will not cause harm, First Amendment

doctrine “reduc[es] an honest speaker’s fear that he may accidentally or

erroneously incur liability” and “provides ‘breathing room’ for more valuable

speech.” Id. at 75 (quotation marks omitted) (alterations adopted).

A recklessness standard provides the right amount of protection here, for

similar reasons as in the true threats context. As just discussed, too low a mental-

state requirement will cause self-censorship and infringe on protected speech. But

the more stringent the requirement is, the greater the cost will be to schools and

other students, because it will shield more “otherwise proscribable . . . speech”

when there is doubt about the speaker’s mental state. Id. at 75. “A person acts

recklessly, in the most common formulation, when he ‘consciously disregards a

substantial and unjustifiable risk that the conduct will cause harm to another.’” Id.

at 79 (alterations adopted) (quoting Voisine v. United States,

(2016)). “[R]eckless defendants have done more than make a bad mistake”—an

experience common to almost all public school students at some point—because

“[t]hey have consciously accepted a substantial risk of inflicting serious harm.”

20 at 80; cf. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist.,

(2d Cir. 2012)

(Pooler, J., dissenting) (“[Young children] learn by fumbling their way to finding

the boundaries between socially permissible, and even encouraged, forms of

expression that employ exaggeration for rhetorical effect, and impermissible and

offensive remarks that merely threaten and alienate those around them.”).

Importantly, Counterman applied a recklessness standard to true threats,

which may carry serious criminal penalties, even though “speech near the

borderline of true threats” is “sometimes political.” Counterman,

.

The same may sometimes be said of borderline threatening, harassing or bullying

off-campus speech, as this case shows, since Leroy’s speech appeared to comment

(crudely) on an issue of serious public concern. Recklessness “offers enough

breathing space for protected speech, without sacrificing too many of the benefits

of” regulation, including protecting the rights of all students to learn, participate

equally in their school communities, and benefit from the public education to

which they are entitled.

(quotation marks omitted).

B.

The application of a heightened mental-state requirement to threatening,

harassing, or bullying off-campus student speech is also consistent with precedent

21 in the school speech context. Several amici endorse the notion, arguably implicit

in Mahanoy, that schools can regulate at least “true threats,” which incorporates a

mental state requirement as discussed above. See Amicus Br. of Ctr. for Indiv. Rts.

& Prof. Eugene Volokh at 4, 6, 11–14; Amicus Br. of ACLU at 15–16; Mahanoy,

;

at 207–08 (Alito, J., concurring). Expanding regulation beyond

explicit threats of “unlawful violence to a particular individual or group of

individuals,” Mahanoy,

n.18 (Alito, J., concurring) (quotation marks

omitted), as schools must, makes a mental state requirement even more important.

True, we have said when applying Tinker to on-campus speech, that “[t]he

test is an objective one, focusing on the reasonableness of the school

administration’s response, not on the intent of the student.” Cuff,

.

But in the context of off-campus speech, we have recognized that subjective mental

state is relevant to whether schools should be able to exercise their on-campus

disciplinary authority based on the effects of off-campus speech. See Thomas, 607

F.2d at 1050, 1052 n.17 (holding school could not regulate speech in newspaper

that “was deliberately designed to take place beyond the schoolhouse gate,” where

“appellants diligently labored to ensure that [it] was printed outside the school,

and that no copies were sold on school grounds,” but distinguishing a “case in

22 which a group of students incites substantial disruption within the school from

some remote locale”); Doninger v. Niehoff,

(2d Cir. 2011)

(recognizing the role of this distinction); Wisniewski,

(“[The]

foreseeability of both communication to school authorities . . . and the risk of

substantial disruption is not only reasonable, but clear. These consequences

permit school discipline, whether or not [the student] intended [the disruption].”).

Perhaps most importantly, permitting schools to regulate this kind of speech

where it meets at least the heightened mental state requirement of recklessness is

consistent with each of the three limits on school authority articulated in Mahanoy.

First, schools usually do not stand in loco parentis with respect to off-campus

speech, because “the children’s actual parents can[] protect, guide, and discipline

them” off campus. Mahanoy,

. But schools have a responsibility to

protect the rights and safety of all students during the school day, and they may

be positioned better than parents in some cases to understand the school context

and observe student learning, on which the effects of off-campus speech are felt.

Second, schools must take care that their regulation of off-campus speech

does not extend to “include all the speech a student utters during the full 24-hour

day,” which could “mean the student cannot engage in [a particular] kind of

23 speech at all.”

at 189–90. Thus, a recklessness standard plays an important role

in eliminating the chilling effect of speech regulation, so that students know that

they can generally say whatever they want off campus without fear that even a

“bad mistake” will result in school discipline. Counterman,

.

Third, punishing off-campus speech when it involves a culpable mental

state is consistent with Mahanoy’s admonition that, as “nurseries of democracy,”

“schools have a strong interest in ensuring that future generations understand the

workings in practice of the well-known aphorism, ‘I disapprove of what you say,

but I will defend to the death your right to say it.’” Mahanoy,

. That

is undoubtedly one valuable function served by schools, but it is not the only

lesson schools should impart to students about living with others in “[o]ur

representative democracy.”

Students must have room to engage in “unpopular

expression” without fear,

but they should also learn that some speech is both

constitutionally protected and corrosive to the goal of living well in a pluralistic

democracy. See generally Fraser,

(“The undoubted freedom to

advocate unpopular and controversial views in schools and classrooms must be

balanced against the society's countervailing interest in teaching students the

boundaries of socially appropriate behavior. Even the most heated political

24 discourse in a democratic society requires consideration for the personal

sensibilities of the other participants and audiences.”). Being sensitive to the effect

our words have on others is not a burden on liberty, but instead is part of living in

a community and a country of diverse experiences and viewpoints. See

(“Public

education must prepare pupils for citizenship in the Republic. It must inculcate

the habits and manners of civility as values in themselves conducive to happiness

and as indispensable to the practice of self-government in the community and the

nation.” (quotation marks omitted) (alterations adopted)). Hearing speech that is

dehumanizing, or calls for or celebrates violence, may be one cost of the

“hazardous freedom . . . that is the basis of our national strength.” Tinker, 393 U.S.

at 508–09. But it is a serious cost. Schools can and should teach students that when

living in community, at school and beyond, freedom comes with responsibility,

which sometimes includes moderating speech because of how others will react.

It may seem incongruous to use the same “recklessness” standard that

applies to criminal threats (as well as civil regulation of speech, like defamation),

but the seriousness of some school punishments, including Leroy’s, underscores

the importance of a culpable mental state. In many ways, suspension is nothing

like the criminal punishments and crippling civil liability that government can

25 impose for other kinds of speech. But the lasting harm caused by school

suspensions is well-documented, including the role they play in the phenomenon

known as the “school-to-prison pipeline.” See generally Paul Hemez, et al.,

Exploring the School-to-Prison Pipeline: How School Suspensions Influence Incarceration

During Young Adulthood, 18 Youth Violence & Juv. Just. 235 (2020) (analyzing

evidence of relationship between school suspensions and later incarceration). And

the harms of suspensions mainly fall on students whose families are less likely to

hire lawyers, or attract pro bono representation, to make a federal case out of their

suspension. See Russell Skiba & Jeffrey Sprague, Safety Without Suspensions, 66

Educ. Leadership 38, 40 (2008) (discussing evidence that relatively few

suspensions are actually targeted at safety issues, and that discriminatory

enforcement is a serious problem). Schools, like other government bodies with the

power to punish, must scrupulously observe the requirements of due process, and

should be judicious in punishing no more than strictly necessary to serve the

legitimate ends of punishment. As a general matter, it is more appropriate to

punish conduct at any level that is undertaken with a culpable mental state similar

to that adopted in Counterman. The very real stakes of school suspensions and

26 other punishments therefore provide additional support for incorporating such a

requirement into the school regulation of off-campus student speech.

C.

Application of a heightened mental state requirement is necessary to ensure

that two aspects of today’s majority opinion are not overread to hamstring school

regulatory authority.

First, the majority opinion downplays the difference between off-campus

speech that is intended to be private or for a limited audience, and speech that is

made to a wide audience including many members of the school community, on

social media or otherwise. I acknowledge at the outset what should be obvious:

The First Amendment is not intended only or even primarily to protect private

conversations. The Constitution protects a robust public discourse, and protection

of free speech would not mean much if we could speak only in hushed tones or

behind closed doors. Mahanoy also makes clear that statements made on social

media are not automatically equivalent to statements made in the classroom, even

if students see speech on social media and have their phones with them in school.

But publicly broadcast speech is nonetheless more likely to be regulable by

schools, not because it deserves less constitutional protection, but because in

27 practice the risk is far greater to make its way to classmates who will be harmed

by it. A student who posts offensive, even vaguely threatening material on social

media may well have no idea of the risk of harm he is causing, in which case he

should not be punished. But many speakers will know that threatening, bullying,

or harassing speech broadcast on social media is infinitely more likely to disrupt

others’ learning than the same comment made privately to a friend. If a speaker

recklessly goes ahead anyway, it is not outside of a school’s power to respond. In

short, audience matters, context matters, and social media is part of that context in

2025. Social media is ubiquitous, but nobody, not even teenagers, expresses

themselves only by posting for a mass audience. The ubiquity of social media may

sometimes call for a lighter touch when regulating student speech, but it may also

heighten schools’ interest in addressing serious harms that result.

Second, the majority opinion emphasizes that “[t]ying a student speaker’s

constitutional right to free expression solely to the reaction speech garners from

upset or angry listeners” would be untenable. Maj. Op. at 22 (emphasis added). I

agree that “[t]he First Amendment’s protection of free speech cannot hinge

entirely on the reaction of a listener to a person's speech,” because then “the First

Amendment would only be as strong as the weakest, or at least the most thin-

28 skinned, listener in a crowd.” Cuff,

(Pooler, J., dissenting). I agree

that if a student has no idea his speech will disrupt anyone’s learning, including if

disruption results only because his speech was distorted or misrepresented, it

hardly makes sense to punish that speaker, and he will not have acted recklessly.

But if substantial disruptions of the school environment and infringements

on the rights of others somehow did not count if they were caused by “reactions”

rather than actions, Tinker would not apply at all off campus, directly contrary to

Mahanoy,

. Neither today’s opinion nor Tinker stands for the

proposition that the school can only prevent disruption that results from the

speaker himself or herself being loud or obnoxious. Cf. Tinker,

(rejecting school’s effort to “punish petitioners for a silent, passive expression of

opinion, unaccompanied by any disorder or disturbance on the part of

petitioners”). In Tinker, the Supreme Court held that the school could not punish

the wearing of anti-war armbands because there was “no indication that the work

of the schools or any class was disrupted,” and the reaction amounted to “a few

students ma[king] hostile remarks” “[o]utside the classrooms.”

(emphasis

added). But if the speech does cause a significant reaction, and specifically if it

makes students fear for their safety and thereby disrupts learning, and the speaker

29 recklessly provoked just that response, he can hardly complain that he is being

punished for someone else’s reaction.

IV.

Applying the foregoing principles to Leroy’s speech, I would find this to be

a very close case. I agree with the majority that many of the emails that the District

received, complaining about Leroy’s speech and calling for a response from the

District, can be construed as expressing offense, discomfort, disgust, and concern

that students might feel “unsafe,” but not actual feelings of unsafety. See J. App’x

at 295, 298, 303, 307, 310, 317, 328, 338, 341, 344, 346, 348, 352, 356, 365, 367, 369,

373. I am wary of suggesting that there is a “magic words” test for complaints that

justify a school response, but I can see how one would interpret those emails as

expressing something more like mere offense. Importantly, though, several of the

emails are not susceptible to that interpretation. One student stated that Leroy’s

speech in fact made her “feel unsafe,” id. at 313, and while a jury might or might

not believe her, the record is devoid of any reason to simply discard that statement

at the summary judgment stage. And one parent indicated that they were “scared

to send [their] daughter to school with the world we live in,” which fear appears

to have been exacerbated by Leroy’s speech. Id. at 332. Further, it is not

30 appropriate to credit Leroy’s disputed account of his mental state in granting him

summary judgment. A reasonable jury certainly could disbelieve Leroy when he

denies that he realized his post would be understood referring to the murder of

George Floyd, id. at 97–100, given his awareness of current events and apparent

reference to a previous incident in the caption: “Cops got another one.”

Nonetheless, I reach the same result as the majority opinion, for two reasons.

First, while student safety concerns may have furnished grounds to punish Leroy,

the District described its own decision as being based on its view that his post was

offensive, which generally is an inadequate justification for severe punishment of

off-campus speech on its own. Id. at 278–79, 286–87, 462, 478; Tinker,

. The District vaguely alluded to safety, but it appears to refer either to Leroy’s

safety, and that of other students involved in his speech, or to the risk that students

would walk out of school, not that students would feel unsafe and have their

learning disrupted as a result. J. App’x at 473–75, 479, 481–83, 485–86. Post hoc

justifications offered in litigation, analogizing Leroy’s speech to threats,

harassment, or bullying, cannot alter the school’s actual basis for his punishment.

Second, while a reasonable jury could find that Leroy knew he was making

an offensive, tasteless, and racist joke, that is not the question. The key question is

31 whether Leroy intended or was reckless as to the risk that certain of his classmates

would reasonably perceive the joke as threatening, bullying, or harassing, and

would feel unsafe in school and have their ability to learn disrupted as a result.

On that score, it is undisputed that Leroy tried to take the post down as soon as he

learned how people were reacting to it, which indicates that he did not intend that

reaction and did not consciously disregard the risks.

at 95–97, 112–19, 215–18,

553–54. Further, the District explicitly based its decision on its belief that Leroy

was merely negligent, since a reasonable person in his position should have known

the effect his speech would cause, even while finding that Leroy did not intend to

harass or discriminate against anyone.

at 282–84, 286–87, 380, 389, 407.

Under these circumstances, I agree with the majority opinion that the severe

punishment Leroy received was not consistent with the First Amendment. But

today’s opinion should not be understood to preclude schools from punishing off-

campus student speech in the future, if that speech makes students feel unsafe and

deprives them of the ability to learn and participate as equal members of their

public-school community, if the speaker intends or is reckless as to that result.

* * *

For all of the foregoing reasons, I respectfully concur only in the judgment.

32