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