On Wednesday, June 23, 2021, the U.S. Supreme Court ruled in favor of a Pennsylvania teenager who sued after a profanity-laced Snapchat message she posted off-campus got her suspended from her high school’s cheerleading team. While the school district may have lost the battle, it may have won the war. In an 8-1 decision, the Justices declined to outright bar public schools from regulating off-campus speech.
The case, Mahanoy Area School District v. B.L., involved an upset 14-year-old student, B.L., who did not make her public school’s varsity cheerleading team. The student expressed her disappointment on the social media app Snapchat by posting a photo in which she had her middle finger raised, with the caption, “F– school f– softball f– cheer f– everything.” The post was made outside of school hours and off school campus. Other students promptly brought B.L.’s post to the attention of the coach and administration, and B.L. was suspended from the cheerleading team for the remainder of the season. She sued, claiming that the school rules that she supposedly violated were constitutionally vague and that her punishment violated her free speech rights.
The Court of Appeals for the Third Circuit agreed with B.L. that school officials overstepped in disciplining her for a post on social media occurring off-campus. In reaching its decision, the Third Circuit held that the seminal decision of the United States Supreme Court in Tinker v. Des Moines Independent Community School District, which empowers school administrators to regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” did not apply to off-campus student speech.
The United States Supreme Court’s Decision
Earlier this week, the United States Supreme Court agreed that the school district violated B.L.’s free speech rights; however, it disagreed with the Third Circuit’s rationale that public schools should be barred from regulating off-campus speech. Specifically, the Supreme Court clarified that “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 Court then went on to suggest certain circumstances in which a school district may have an interest in regulating off-campus speech:
- serious or severe bullying or harassment targeting particular individuals;
- threats aimed at teachers or 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.
On the other hand, the Supreme Court distilled three features of off-campus speech that make it less likely that schools will have an interest in regulating off-campus speech:
- a student’s off-campus speech will generally be the responsibility of the student’s parents, not the school.
- any regulation of off-campus speech would cover almost everything that a student says or does outside of the school context.
- schools have an interest in protecting unpopular speech and ideas by their students.
In light of these unique features of off-campus speech, the Court explained that the leeway the First Amendment typically grants schools in regulating on-campus speech is diminished when it comes to off-campus speech. Instead of issuing a bright-line rule, the Court stated: “We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”
While the Supreme Court held that schools can, in certain circumstances, regulate off-campus speech, the Supreme Court still concluded that the decision to suspend B.L. for her social media post violated the First Amendment. In reaching this conclusion, the Supreme Court observed that the speech B.L. uttered was the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection. Further, B.L.’s 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, to an audience consisting of her private circle of Snapchat friends. Further, the Supreme Court could not find any evidence in the record of the sort of “substantial disruption” of a school activity or threatened harm to the rights of others that might justify the school’s action.
What This Means for School Districts
In light of the Supreme Court’s decision, school districts in Connecticut and around the country are cautioned to carefully evaluate the facts of any particular circumstance before disciplining a student for speech that occurs exclusively off campus. Although the Court made clear that the First Amendment permits public schools to regulate some student speech that does not occur on school premises during the regular school day, this authority is more limited than the authority that schools exercise with respect to on-campus speech. To that end, the decision suggests that school officials will need to demonstrate some heightened need to exercise such authority to regulate off-campus speech (i.e., serious or severe bullying or harassment targeting particular individuals).
Please continue to monitor www.ctschoollaw.com for updates. The School Law Practice Group will continue to review and analyze how courts interpret the Supreme Court’s ruling in this case and will provide timely updates of future developments. If you have any questions about the Supreme Court’s decision, please do not hesitate to contact Tyler J. Bischoff at firstname.lastname@example.org or Natalia Sieira Millan at email@example.com or any member of our School Law Group.