Dear Legal Mailbag:
This morning, I heard on the news that the United States Supreme Court ruled yesterday that students cannot be punished for online, off-campus speech. As I understand it, some cheerleader was upset that she did not make the varsity squad, and she and her friend posted some choice vulgarities directed at the cheerleading team on Snapchat. Not surprisingly, the school suspended her from cheerleading for the year. It should have ended there, but apparently she decided to make a federal case out of it. To make matters worse, the student won, and the Court held that school officials violated her First Amendment rights when they suspended her.
As the principal of a middle school, I find this decision very disappointing. I can’t imagine what I am going to do now. We have been very strict in enforcing our bullying policy, and we have had to discipline any number of students for their unkind posts online. Given this ruling, are mean students now able to cyberbully vulnerable students with impunity while we school administrators stand helplessly by? It just doesn’t seem right!
Ripped from the Headlines
You heard half the story, and Legal Mailbag is happy to tell you the rest. To be sure, the Court did affirm a lower court ruling that school officials violated the student’s free speech rights by suspending her from the cheerleading team for the year. However, it rejected the reasoning of the Third Circuit, which had held that the famous Tinker test for regulating student speech does not apply to off-campus speech. Given the Court’s reasoning in this case, it is clear that school officials still have the right to take action when off campus speech is harmful.
You have accurately described the facts in this case, Mahanoy Area School District v. B.L. (U.S. 2021) (available HERE). When school officials refused to reinstate the student after she apologized, her parents sued, claiming that the vulgar remarks the student directed at the cheerleading team were protected by the First Amendment. The federal district court agreed with the parents’ claims, and the Third Circuit Court of Appeals did them one better. Not only did the court hold that school authorities violated the student’s rights in this case, but it also held more generally that school officials do not have the authority to regulate student speech that occurs off campus.
The broad ruling of the Third Circuit in this case was a departure from decisions by other federal appellate courts, including our Second Circuit, holding that the Tinker test does apply to off-campus speech. As school law fans know, Tinker v. Des Moines Independent School District (U.S. 1969) is the seminal case on student rights. Mary Beth Tinker, her brother and a friend were suspended for wearing black armbands to school in violation of an ad hoc rule prohibiting the wearing of armbands that anticipated their protest of the war in Viet Nam. Her parents sued in federal court, claiming that the discipline violated her free speech rights, and the United States Supreme Court agreed, famously holding that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The Court in Tinker went on to explain that the free speech protections for students have limits, and that school authorities may regulate student speech if they reasonably forecast that the student speech will cause substantial disruption or material interference with the educational process or invasion of the rights of others. For more than fifty years, courts have applied these standards, the “Tinker test,” to determine when student speech is protected. The Second Circuit, for example, cited Tinker in holding that a student was properly disciplined for sending fellow students instant messages that included an icon with the word, “Kill Mr. VanderMolen” (the student’s math teacher) even though the “speech” was off campus. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir.2007), cert. denied, 552 U.S. 1296, (2008). By contrast, the Third Circuit ruled in the B.L. v. Mahanoy Area School District case held that the Tinker rule does not apply to off-campus speech.
In its decision on June 23, 2021, the Court rejected that broad holding of the Third Circuit. To be sure, the Court held that school officials were not justified in disciplining B.L. for her vulgar speech, which, it found, did not interfere with the educational process. However, it held open the possibility that the Tinker test can be applied to off-campus speech in serious cases:
Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. These include 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. (Emphasis added).
Student free speech rights are significant, and the standard under Tinker for regulating student speech has always been high — the disruption of the educational process caused by the speech must be “substantial.” But there are situations in which student speech is harmful and cannot be tolerated, and the Mahanoy case preserves the right of school administrators to act in such cases.
Finally, Legal Mailbag is happy to report that he and a colleague correctly predicted this ruling in an article recently published in FORUM Magazine, “Do Bullies Have Free Speech Rights?” For the interested reader, that article is available HERE.
Originally appeared in the CAS Weekly Newsletter.