Supreme Court Clears the Way for Public Schools to Regulate Some Off-Campus Student Speech

On June 23, 2021, the U.S. Supreme Court decided Mahanoy Area School District v. B.L., No. 20-255.  The case is important because it (somewhat) decided the extent to which public schools may regulate students’ out-of-school speech.  In sum, the Court held that public schools have a “diminished interest” in regulating out-of-school speech as compared to in-school speech, although exactly what that means remains a bit vague.

The case arose in May 2017, when a high school freshman tried out for the varsity cheerleading team, hoping to make the team for her sophomore year.  She did not make the varsity team but was offered a position on the junior varsity team.  As a result, she did what many young people today may have done – she took to social media.  The student used her smartphone to make two posts on Snapchat.  One post included a photo of her and a friend with their middle fingers raised, saying, in pertinent part, “f*ck cheer”. The other post merely expressed disbelief and dissatisfaction, without any vulgarity, about not making the varsity team.  As a result of the two social media posts, some members of the cheerleading squad became upset and reported the posts to the cheerleading coaches.  The coaches, in consultation with school officials, decided to suspend the student from the junior varsity cheerleading squad for the upcoming year because the posts used profanity in connection with a school-sponsored extracurricular activity.

With the help of the ACLU of Pennsylvania (note: Benjamin R. Picker, Esq. of Donoghue & Picker, LLC has worked closely with the ACLU of Pennsylvania in past cases), the student sued the School District.  In October 2017, the United States District Court for the Middle District of Pennsylvania granted a preliminary injunction ordering the school to reinstate the student to the team.  Subsequently, in March 2019, the District Court determined that the punishment violated the student’s First Amendment rights.  The District Court later ordered the School District later awarded the student nominal damages, directed the School District to pay the student’s attorney’s fees, and ordered the school to expunge her disciplinary record.  The District Court based its decision to find in favor of the student on a prior Supreme Court case of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), which held that public schools cannot punish students’ in-school speech unless it would “substantially interfere with the work of the school or impinge upon the rights of other students,” or unless such speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”  The School District appealed to the United States Court of Appeals for the Third Circuit, which affirmed the District Court’s decision in June 2020, holding that Tinker only applies to in-school speech, and because the speech at issue was “pure speech” that occurred outside of school, the School District could not regulate it by punishing the student.  The School District then asked the Supreme Court to decide whether Tinker applies to student speech that occurs off campus and the Supreme Court agreed to do so.

First, the Supreme Court acknowledged, like the Court in Tinker did, that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the school house gate.”  However, given the “special characteristics of the school environment,” schools may regulate in-school student speech that is indecent, lewd, vulgar, or which promotes illegal drug use, speech that others may reasonably perceive as “bearing the imprimatur of the school” such as speech appearing in a school-sponsored newspaper, and speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Moreover, the Court disagreed with the Third Circuit’s categorical approach that off-campus speech cannot be regulated, but the Court refused to define exactly what constitutes “off campus” speech and refused to provide exhaustive examples of what off-campus speech and activities a school may regulate.  Instead, the Court provided some guidance, limiting the speech and activities that a school may regulate to those a school has a “special need to prevent, e.g. substantial disruption of learning-related activities or the protection of those who make up a school community.”  The Court then gave some examples of off-campus speech that could be regulated, including, “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.”

The Court provided an important explanation of why off-campus speech must ordinarily be treated differently, and should be less regulated, than on-campus speech.  First, with regard to off-campus speech, schools do not usually stand in loco parentis, meaning in place of parents.  Instead, while off campus, it is ordinarily parents, and not schools, who are responsible for protecting, guiding and disciplining their children. Second, permitting schools to regulate both on-campus speech and off-campus speech in the same way could potentially prohibit students from engaging in a particular type of speech at all times.  Third, the Court held that schools actually have an interest in protecting, and not regulating, student speech, especially when it occurs off-campus, since schools are “nurseries of democracy” that should foster the “marketplace of ideas,” even if that includes “unpopular ideas.”  Thus, the ability of schools to regulate off-campus speech is “diminished” as compared to their ability to regulate on-campus speech.

Finally, the Court applied these principles to the particular case of B.L. The Court held that her posts, while crude, were not threatening or obscene, were made outside of school and school hours, did not identify the school or any particular member of the school community, were meant for viewing by a closed group of individuals, and used a personal and school-owned device.  The Court also determined that while the school may have in interest in teaching good manners and punishing the use of vulgarity aimed at part of the school community, such interest was diminished by the fact that the speech occurred outside of school and school hours. The Court also acknowledged a lack of evidence that the student’s speech caused “substantial disruption” of a school activity or threatened any harm to the rights of others. Thus, the mere fact that some students were upset, that a few minutes of classroom time were taken to discuss the matter, and that cheerleading team morale may have been affected, was insufficient to justify the school’s conduct.

Donoghue & Picker, LLC regularly brings civil rights actions on behalf of those whose constitutional rights have been violated by governmental entities.