SCOTUS Affirms that Schools May Regulate Off Campus Speech – Sometimes…

by | Jun 24, 2021 | General

In a lengthy decision, the Supreme Court of the United States found that a Pennsylvania High School overstepped when it suspended a student from the cheerleading squad for using social media to criticize her exclusion from a spot on the varsity team and a private softball team. The High Court found the school’s actions to be a violation of the student’s First Amendment rights. However, the Court stopped well short of declaring that all off-campus speech is protected from school-based regulation.

After discovering that she did not make the varsity squad, and while shopping in a convenience store the following weekend, the student at issue (B.L.) took to social media to express her displeasure with the decision in two brief Snapchat posts – one of which included profanity. The posts were initially shared with her social media friends, who shared the posts with other friends, including the child of the cheerleading squad coach. This upset team members and became a topic of chatter in a class taught by another coach. In response, B.L. was suspended from the JV squad for the upcoming year. This spurred the student and her parents to file suit in Federal Court.

After first granting a temporary restraining order and a preliminary injunction ordering the student’s reinstatement to the squad, the trial court ultimately ruled in B.L.’s favor, determining that there was no substantial disruption at the school. Further finding that the discipline violated B.L.’s First Amendment rights, the court awarded nominal damages, attorneys fees, and ordered the school to expunge the discipline from her record. The decision was upheld on appeal, with an added pronouncement that schools within the Third Circuit were not free to discipline for off-campus speech, which was partially defined in the opinion as “speech that is outside school-owned, -operated, or -supervised channels.”

The court went on to conclude that, since the speech here occurred off campus, the standard handed down in the oft-referenced case of Tinker v. Des Moines Independent Community School District (speech that materially disrupts classwork or involves substantial disruption or invasion of the rights of others) did not apply. This very narrow reading of Tinker may have prompted the U.S. Supreme Court to accept review to clarify, among other things, the application of the Tinker standard to student speech that occurs off campus.

In its June 23, 2021 opinion delivered by Justice Breyer, the Supreme Court held that school districts may have a special interest in regulating some off-campus student speech. However, that interest primarily exists only when the Tinker test is applied and in so applying finds that the student speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others. However, unrestricted regulation of any speech that may relate to the school is unauthorized. In this case the Court opined that the student’s speech was not disruptive to the school environment and therefore was subject to First Amendment protection.

What this Means for Schools: While the media may portray this case as a victory for the student, in reality it is largely a carefully worded affirmation that, especially in the present technology age, actions away from school may have a disruptive impact at school. Yet the onus remains with the school to show how that disruption is manifested. The Court also affirmed a school’s authority to apply discipline to extracurricular activities only. Districts are advised to review their board policies, codes of conduct and extracurricular guidelines for the necessary support of disciplinary consequences and notice of the possibility of corrective action for violations of school rules.

Mahanoy Area School District v. B.L. ( Slip Opinion No 20-255)

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

by | Feb 22, 2021 | General, Student Education and Discipline

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.