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By: Lily Crespo Esq.
Quick Takeaway: School districts wishing to impose discipline for off‑campus speech will need to document a substantial disruption to the school or extracurricular environment, rather than simply relying on speculation. Read some of our past coverage of this issue here.
Students have the right to freedom of expression unless it infringes on the rights of others, school safety, or interferes with the ability of a school to deliver its educational services and processes. Thus, off-campus online expression would be protected in the same way as traditional speech.
Student freedom of speech: For decades, school administrators have worked under the Tinker standard – i.e., the principle that on‑campus student free speech can only be disciplined where it causes a substantial disruption to the school environment. Since then, the Supreme Court has weighed in on only a few student speech cases and, until today, those cases did not generally directly address off‑campus speech. In the absence of guidance from the highest court, and with the advent of social media, Tinker has often been used to guide school decisions relative to off‑campus student speech.
What happened last week: The U.S. Supreme Court delivered an 8-1 ruling in favor of B.L., a former student at Mahanoy Area High School in Mahanoy City, Pennsylvania. During her freshman year, B.L. tried out for a position on the school’s varsity cheerleading team, but she ultimately did not make the team and was offered a spot on the junior varsity squad. That weekend, B.L. used her smartphone while off‑campus and uploaded images to her Snapchat account. One of the images included an expletive‑laden caption directed at the school and the cheerleading team, among other things. The second image was comprised of a caption that communicated B.L. was unhappy she was told she needed a year on the junior varsity cheerleading team. The images were broadcast to B.L.’s friends, some of whom were also on the team, and were spread to others on the team. Several cheerleaders approached the cheer coaches concerning B.L.’s actions, visibly upset. The coaches then suspended B.L. from the squad for a year, based on the notion that the social media posts used profanity in connection with a school extracurricular activity, in violation of school and team rules. B.L.’s parent filed an action on her behalf thereafter, alleging B.L.’s First Amendment free speech rights had been violated.
The Court acknowledged that, consistent with Tinker, schools have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others, and that those special characteristics grant schools special leeway to regulate speech that occurs under their supervision. The Court also conceded that a school’s regulatory interests can be significant in some off‑campus cases, such as where there is serious bullying or harassment, threats aimed at teachers or students; failure to follow rules relative to schoolwork or use of technology, and breach of school security devices. But, the Court did not address these types of cases in‑depth, and it declined to draw any bright‑line rule as to all of the off‑campus speech cases that could be subject to school regulation.
Applying its principles to this case, the Court analyzed B.L.’s free speech interests against the school district’s interests – specifically: teaching good manners and punishing vulgar language aimed at the school community; preventing disruption within the classroom or within extracurricular activities; and, preventing disruption to team morale. As to the first interest, the Court noted that the school district was not acting in loco parentis while B.L. was off‑campus, and that there was no evidence the school generally attempted to prevent students from using vulgarity outside the classroom. Relative to the school’s second and third interests, the Court opined that no evidence had been submitted suggesting substantial disruption of a school activity or any serious decline in team morale. Thus, it found the school district’s interests did not override B.L.’s free speech interests.
What the case means for schools: Mahanoy Area School District raises significant questions for school administrators. It is clear that off-campus speech can be regulated sometimes, but there is substantial uncertainty relative to when, precisely, those cases exist. Notably, the Court’s analysis also contained little that would separate extracurricular activities from core school activities, even though school administrators have – for years – worked under the assumption that extracurricular activities are a privilege, rather than a right, and that there is greater latitude to impose exclusion or discipline. Whether, and to what extent, extracurricular activities will be subject to greater school discretion will certainly be the focus of arguments in cases to come.
Mahanoy Area School District certainly shifts the balance toward the rights of students rather than school districts, but the case is sure to spark further, clarifying litigation in the coming years. For now, school administrators should be mindful of the impact of this case, especially because First Amendment free speech cases are often fact‑specific. When in doubt, school administrators should contact legal counsel.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.