Supreme Court clarifies school authority to punish off-campus speech
July 26, 2021
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Student “B.L.” was very upset. After her freshman year on the junior varsity cheerleading squad, she hoped to make the varsity squad for her sophomore year. She didn’t.
Frustrated with this development, frustrated with the knowledge that an incoming freshman was selected for the varsity squad, and frustrated with school and club softball developments, she decided to share her frustration on Snapchat one weekend. Her two posts, one of which included a photo of her and a friend hoisting a middle finger, read “[F**k] school [f**k] softball [f**k] cheer [f**k] everything,” and “Love how me and [another student] get told we need a year of jv before we make varsity but that’s (sic) doesn’t matter to anyone else?”
The Snapchat story was viewed by about 250 of B.L.’s “friends,” many of whom were classmates and teammates, and not surprisingly screenshots of the posts went viral and made their way to B.L.’s high school cheerleading coaches. As a result, the coaches removed B.L. from the cheerleading program for the remainder of the year, stating the posts violated program rules and the school’s rules for student-athlete conduct, which she and a parent had acknowledged in writing. B.L. and her parents appealed the decision to the athletic director, the principal, the district superintendent and the school board; all of them sustained the coaches’ decision.
B.L., through her parents, filed a lawsuit in federal court, arguing the one-year suspension violated her First Amendment rights, the school and team rules were overbroad and constituted viewpoint discrimination, and that the rules were unconstitutionally vague. On appeal before the Third Circuit Court of Appeals, the court not only ruled in B.L.’s favor, but it broke with every other federal circuit addressing the issue and concluded public school districts have no authority to punish students for off-campus speech. More specifically, the Third Circuit concluded the standard set long ago in Tinker v. Des Moines Independent Community School District (1969) — that school authorities can regulate student speech where the exercise of speech “materially disrupts classwork, or involves substantial disorder or invasion of the rights of others” — does not apply to off-campus speech, and therefore cannot be a basis for school regulation or discipline of off-campus speech.
The U.S. Supreme Court agreed to review the decision, expressly to address whether school districts can discipline students for off-campus speech and, if so, to what extent.
In an 8-1 decision, the Court disagreed with the Third Circuit’s holding that off-campus speech can never be regulated, but concluded nonetheless that in this case the school district violated B.L.’s First Amendment rights. The decision provides guidance, though general, regarding the standards for distinguishing a school district’s authority to regulate off-campus speech as opposed to on-campus speech.
The Supreme Court decision In Mahanoy Area School District v. B.L. By and Through Levy (2021), the Supreme Court disagreed with the Third Circuit’s conclusion that Tinker does not apply to off-campus speech in any situation, noting that such “would deny the off-campus applicability of Tinker’s highly general statement about the nature of a school’s special interest.”
The Court stressed that public schools have a “special characteristic” in that they “at times stand in loco parentis, i.e., in the place of parents.” As such, the Court did “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.”
Read the full analysis of this decision and how it impacts schools on ACSA’s Resource Hub.
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