Can schools discipline students for offensive social media posts? The U.S. Supreme Court will decide in B.L. v. Mahanoy Area School District

Written by: Liz Hudson

The U.S. Supreme Court recently agreed to hear a First Amendment case about student social media use related to extracurricular activities. In June, 2020, the Third Circuit Court of Appeals affirmed a lower court’s ruling in favor of a student who was removed from the cheer team after making offensive social media posts.  

Frustrated with her lack of advancement on the cheer squad, the freshman student posted to Snapchat “F*** school f*** softball f*** cheer f*** everything” to her 250 followers.When peers on the cheer team reported the message to a coach, the student was removed from the team, but later told she could try out again the following year. Her parents filed suit in a federal court on her behalf arguing that MAHS violated her First Amendment rights. 

The school district contends that U.S. Supreme Court precedent justified its disciplinary action, especially a school’s prerogative to discipline students’ use of vulgar or plainly offensive speech established in Fraser.1 School policy elevated expectations of behavior for student athletes, preventing them from tarnishing the school’s image. Furthermore, cheer team rules discouraged “foul language” and required students to act with respect for the school, coaches, and others on the team. Negative internet posts about cheer were also prohibited.  

The Third Circuit decided for the student because the Snapchat post was off-campus speech, and, thus, Fraser did not apply. It refused to give schools discretion to regulate vulgar speech in extracurricular activities while outside of school. The court also extended previous precedent — ultimately concluding that Tinker, which allows schools to discipline disruptive speech, “does not apply to off-campus speech.” The court determined that students’ vulgar social media posts about school or school activities fall outside parameters of school discipline. Though the court recognized possible discipline for violent posts, it punted that question to another day.  

On January 8, 2021, The U.S. Supreme Court agreed to hear the case. The question certified by the Court was: 

“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”  

Legal arguments have yet to be filed, and oral arguments have not been scheduled. Look for updates from Ennis Britton as this case progresses. 

What does this mean for your district? 

Schools struggle to determine appropriate student social media regulation, and courts have offered conflicting First Amendment guidance. While the Third Circuit decision is not binding for schools in Ohio, the Supreme Court decision will be, and Ohio schools will have to abide by it when it is issued. In the meantime, Ohio schools should consider using restraint when disciplining students for social media posts outside of school, even those that could potentially disrupt the education environment or extracurricular activities. 

Ennis Britton Proudly Welcomes Kyle Wheeler

Ennis Britton is delighted to announce that Kyle Wheeler, Esq., has joined the law firm.  In addition to practicing in all areas of school law, Kyle joins the Special Education and Construction and Real Estate Practice Groups of Ennis Britton.

Kyle is not new to the firm or our clients, having clerked with Ennis Britton since Summer, 2018 and throughout law school. As a law clerk, Kyle was exposed to multiple aspects of school law, including public and student records, legislation, special education, labor and employment, and civil rights. A strong writer, Kyle has researched and drafted legal memoranda, presentations and articles on unique questions of law and the impact of legislative and legal trends of public education. 

Kyle is a 2020 graduate of Cleveland Marshall College of Law with the distinction of cum laude. He earned his undergraduate degree in Business Operations from The Ohio State University. Due to the COVID-related delay in the administration of the bar examination, Kyle was registered to practice law and certified for “Practice Pending Admission” (PPA) prior to his regular admission to the state bar. During his PPA, Kyle successfully argued a case in state court, and attended mediation proceedings and other litigation conferences. 

Originally from Brunswick, Ohio, Kyle works in the Cleveland office of Ennis Britton. In his free time, Kyle enjoys golfing.