Differing standards in regulating off campus speech

With the growth of the internet and social media, students are increasingly using online platforms as public forums of communication. This communication occasionally impacts the school environment which has created a new realm of regulation for school authorities. Traditionally, the authority of school administrators’ stopped at the school yard gates. However, the age of social media has prompted reforms in legislation and brought forth novel case law. Ontario’s Education Act currently sets out the test to determine when school administrators can exercise their authority off school grounds: in circumstances “where engaging in the activity will have an impact on the school climate.”[1] In the US, the landmark Tinker case set out a different test: school administrators may only exercise their authority against student speech when the speech causes a “substantial disruption or material interference with school activities.”[2] This standard was affirmed to apply to off-campus speech in the Mahanoy case.[3] The standard in the US is markedly elevated compared to Ontario’s, requiring a more substantial impact on the school climate. This difference raises two important questions: how can this difference be explained and is one standard more fitting than the other? [1] Education Act, R.S.O. 1990, c. E.2, s. 306(1) [rep & sub. 2007, c. 14, s. 4; am. 2017, c. 26, Sched. 1, s. 30(3), (4); 2020, c. 18, Sched. 5, s. 8]. (emphasis added) [2] Tinker v. Des Moines Independent Community School District, 393 U.S. 503. (emphasis added) [3] Mahanoy Area School District v. B.L., 594 U.S. 180.