Schools May Regulate Off-Campus Student Speech, But Tread Cautiously

by Holly James

The U.S. Supreme Court recently issued its long-awaited decision in Mahanoy Area School District v. B.L., ruling that a school district violated a cheerleader’s First Amendment rights when it suspended her from the cheer team because of her off-campus social-media posts.  However, in doing so, the Court explained that its ruling was narrowly limited to the facts before it and that, in other situations, students’ First Amendment rights in off-campus speech may very well need to yield to the special interests of schools in limiting substantial disruption in the school setting and protecting the rights of other members of the school community.  But if you were hoping for a bright-line rule as to when a school’s interests will prevail over those of students, this case will not give you that.

The 1969 case, Tinker v. Des Moines Independent Community School District, provides the backdrop for the B.L. decision.  Tinker involved on-campus speech (students wore black armbands to school to protest the Vietnam War), and there, the Supreme Court held that students may freely express their opinions, even on controversial topics, as long as they do not “substantially interfere with the work of the school or impinge upon the rights of other students.” Further, and of importance to the B.L. Court, Tinker also said that “[c]onduct by [a] 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, of course, not immunized by the constitutional guarantee of freedom of speech.”

In the B.L. case, Pennsylvania student, B.L., joined her high school’s junior varsity cheerleading squad in her freshman year.  The squad held tryouts for the next school year in May.  Before she could try out, B.L. had to sign a code of conduct that required squad members to show respect for their teammates, coaches, the school, teachers, and other schools’ cheerleaders.  The code of conduct also forbade the use of profanity and prohibited cheerleaders from posting “negative information” about “cheerleading, cheerleaders or coaches” on the Internet.

B.L. signed the document and tried out for the varsity team.  Unfortunately, she did not make varsity and was instead placed on the JV squad again for her sophomore year.  B.L. took issue with this, particularly because an incoming freshman made the varsity squad.  That weekend, B.L. visited a convenience store where, in frustration, she used her cell phone to post two photos on her Snapchat “story” which allows any of the user’s “friends” to view the posts for 24 hours before disappearing.  The first photo was a selfie of B.L. and a friend with raised middle fingers and the caption, “F*** school f*** softball f*** cheer f*** everything.”  (She used all the letters, though.)   The second post read, “Love how me and [another student] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?”

Naturally, some of B.L.’s Snapchat “friends” were students at her high school and were members of the cheerleading squad.  And predictably, one of those kiddos took screenshots of B.L.’s posts and shared them with other squad members.  One of those members showed the pictures to her mom who was a cheerleading coach.  That week, several cheerleaders and other students approached the coaches “visibly upset” about B.L.’s posts.  The posts were also briefly discussed during an Algebra class taught by one of the coaches.  As a result, the coaches decided to suspend B.L. from the cheerleading team for one year for violating the team’s code of conduct.

Faced with this significant punishment, B.L. and her parents sued the school district, arguing that B.L.’s speech rights under the First Amendment had been violated by the school’s decision.  A federal district court in Pennsylvania agreed.  The school district then appealed to the U.S. Court of Appeals for the Third Circuit, where it—along with all school districts in Pennsylvania, New Jersey, and Delaware—lost in an even worse way: the Third Circuit declared that off-campus speech was not subject to Tinker and could not be regulated by schools at all.

Thankfully, the U.S. Supreme Court disagreed with that extreme position.  While the Supreme Court did agree that, under these specific facts, the school overstepped, the Court rejected the Third Circuit’s categorical take on off-campus speech.  (Cue the collective sigh of relief from PA, NJ, and DE school districts.)  According to the Court, the special interest of schools recognized in Tinker do not disappear when the speech occurs off campus, but it is diminished due to three characteristics unique to off-campus speech.

First, unlike on-campus speech, when a student speaks off campus, schools will rarely stand in loco parentis (meaning, in the place of parents).  Additionally, if schools could regulate speech both on and off campus, that would encompass all speech a student utters in a 24-hour day.  Courts are therefore instructed to be more skeptical of a school’s efforts to regulate off-campus speech because those efforts may mean the student cannot engage in that kind of speech at all.  Finally, the special interest of schools in policing off-campus speech is also diminished by the arguably even-greater interest and higher calling of schools to allow students to express unpopular ideas; as the Supreme Court stated, “America’s public schools are the nurseries of democracy[,]” and “[o]ur representative democracy only works if we protect the ‘marketplace of ideas.’”

As for B.L.’s posts, her speech amounted to a “criticism of the rules of a community of which B.L. forms a part.”  They did not involve unprotected speech like fighting words or obscenity.  Her speech would have, therefore, been entitled to strong protection if said by an adult.  The Court next analyzed when, where, and how B.L. spoke: her posts appeared outside of school hours from a location outside the school; she did not identify the school in her posts or target any member of the school community with vulgar or abusive language; and she transmitted her speech through a personal cellphone and to an audience consisting of her private circle of Snapchat friends.

Under these facts, the Supreme Court concluded that the school’s interest in teaching good manners and punishing vulgar language was not sufficient to overcome B.L.’s interest in free expression.  As for the school’s interest in trying to prevent disruption, there was little to no evidence of any substantial interference or disruption.  Discussion of the posts took, at most, 5-10 minutes of an Algebra class for a couple of days, and some students were “upset” about the content of the posts.  The Court explained that this was not enough to satisfy Tinker’s demanding standards: “to justify prohibition of a particular expression of opinion, [a 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.”  The school, therefore, violated B.L.’s First Amendment rights when it suspended her from the cheerleading team.  However, the Court specifically stated that its holding was limited to the set of facts before it and that it would leave for future cases to determine what may count as “off campus” speech and when/if a school’s special interest may prevail over a student’s rights to free speech and expression.

Although the B.L. decision does give schools the ability to address what students say outside the four walls of the school building, this is not a blank check.  Schools should proceed cautiously before disciplining students for such speech and consider factors including the content and context of the speech; where, when, and how the speech occurred; and whether there is sufficient evidence that the speech caused substantial disruption to the school setting or invaded the rights of other students or staff.  If your district needs help navigating these complex issues, Leasor Crass is here to assist.

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