In April, the United States Supreme Court heard argument in a case that could have changed the school law landscape. The issue before the court was whether the Mahanoy Area School District in Pennsylvania had violated the First Amendment rights of a student when it suspended her from the cheerleading team for vulgarities she posted on Snapchat after she did not make the varsity squad. Would the court affirm the Third Circuit and provide even greater protection to a students’ First Amendment right to speak or would it give more power to the school to regulate a student’s speech when not on campus?

The headlines blared last week that the court ruled in favor of the student, which it did. But savvy school administrators should know that school authorities dodged a bullet here, and they should be grateful that the court rejected the reasoning of the Third Circuit in this case.

B.L. had labored in the obscurity of the JV squad for her freshman year, and she was hopeful that she would move up to the varsity cheerleading squad with the new season. When she heard the news that she did not make the varsity squad, she was disappointed—so much so that she and a friend shared her disappointment with the world by posting two pictures on Snapchat, including one with middle fingers raised with the caption, “Fuck school fuck softball fuck cheer fuck everything.” When one of her teammates forwarded that Snapchat post to the cheerleading coach, B.L was suspended from cheerleading for that entire season, notwithstanding an apology for her post.

Her parents sued, claiming that her posts were speech protected by the First Amendment, and the district court agreed. The school district appealed, and the Third Circuit affirmed. But in so doing, a divided Third Circuit announced a broad new rule, to the effect that school officials have no authority to discipline students for off-campus speech, including the posts in question.

By contrast, other appellate courts, including the Second Circuit, have ruled that school officials do have such authority to discipline students for off-campus speech. In Mahanoy, the United States Supreme Court resolved the conflict, holding that school officials do have authority to discipline students for their off-campus speech in appropriate cases. However, the court limited that authority to compelling situations, and it ruled that the discipline of B.L. for her vulgarity exceeded that authority and violated her First Amendment rights, as explained below.

For more than fifty years, we have been guided by the court’s seminal decision, Tinker v. Des Moines Independent School District (U.S. 1969). For those of us who practice in the First Amendment arena or are children of the sixties, we will recall the court held that school officials had violated the First Amendment rights of Mary Beth Tinker, her brother and a friend by suspending them from school for wearing black armbands to protest the war in Vietnam (in violation of an ad hoc rule against wearing such armbands hurriedly adopted in anticipation of their protest). In so ruling, Justice Fortas famously said on behalf of the court, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Those rights, however, are subject to limits, and the court went on in Tinker to lay out the framework that still applies today: “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, of course, not immunized by the constitutional guarantee of freedom of speech.”

In the Mahanoy Area School District case, the district court rejected the school district’s claim that school officials can regulate off-campus vulgarity under Bethel School District v. Fraser (U.S. 1986), and it applied the Tinker test. Finding that her vulgar post did not cause substantial interference with the educational process, the court ruled in favor of B.L.

The Third Circuit, however, went a step further by holding that the authority of school officials to regulate student speech under Tinker does not extend to off-campus speech: “We hold today that Tinker does not apply to off-campus speech —that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” That decision, however, was not unanimous. Judge Ambro dissented from the holding on the basis of judicial restraint, explaining that the court should not announce a broad new rule when it was not necessary, given that the vulgar posts caused no disruption at all. He was correct.

This broad new rule was deeply concerning, and we applaud the United States Supreme Court’s rejection of it. To be sure, the court affirmed the significant protection students have under the First Amendment, and it laid out three factors militating in favor of protecting off-campus speech: (1) school officials do not normally stand in loco parentis with the respect to off-campus speech, noting that “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility;” (2) assertion of school authority in such cases could result in 24/7 oversight of student speech that impinges on their First Amendment rights, and (3) “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus,” an important lesson that schools should convey.

Significantly, however, and in light of the realities that most modern day discourse takes place through internet communications, the court also recognized that some off-campus speech is harmful and should be regulated: “The school’s regulatory interests remain significant in some off-campus circumstances. . . . . 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.” (Note P.A. 19-166, effective 7/1/21, raises the bar on what is “bullying” and conforms to the court’s carve-out from protected speech by defining “bullying” as an act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in reasonable fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.”) Of course, what is “severe” will likely provide the next cottage industry of school litigation. As Justice Alito noted in his concurring opinion, “Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.”

But for now, the court has appropriately clarified the Tinker test as it applies to off-campus speech, outlining the few circumstances that would authorize school regulation of such speech. Mere “disruption” has never been the standard; from its inception, the Tinker rule has limited the rights of school officials to regulate student speech to situations when they reasonably forecast that student speech will “materially [disrupt] classwork or [involve] substantial disorder.” (Emphasis added).

The Mahanoy Area School District case strikes an appropriate balance between the competing concerns for student free speech rights on the one hand, and for a safe and healthful school environment for all students on the other. Importantly, the decision serves as a reminder to school officials that they may regulate student speech only in compelling circumstances.


Originally published by the Connecticut Law Tribune.
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