On Tuesday of this week, the Supreme Court, in Mahanoy Area School District v. B.L., held that a public school violated a student’s First Amendment rights by disciplining the student based on her off-campus speech. The Court declined to establish a rigid rule regarding off-campus speech. Its analysis of the off-campus speech, however, is useful in analyzing other situations confronting school districts.
The case involved a student who posted a photo of herself with her middle finger raised and a caption stating “f*** school and f*** cheer” on her Snapchat story. The student subsequently posted a second story expressing that she did not make the varsity cheerleading squad, which provided background to her first post. The student’s Snapchat post occurred after school hours and while she was off school grounds. The photo ultimately made its way to the school district, which suspended the student from the junior varsity cheerleading squad.
Although the Supreme Court affirmed the Third Circuit’s holding that the school’s discipline violated the student’s First Amendment rights, the Court rejected the Third Circuit's approach, which would have prohibited schools from addressing any off-campus speech. In rejecting the Third Circuit’s approach, the Court stated it was not willing to create a bright line rule regarding off-campus speech because schools’ regulatory interests remain significant in some off-campus circumstances. It emphasized that the special characteristics that allow schools to regulate student speech do not always disappear when a school regulates off-campus speech as the Third Circuit held.
Rather than attempting to address all situations in which off-campus speech may be within the purview of a school, the Court laid out three features of off-campus speech that distinguish it from circumstances in which schools may seek to regulate on-campus speech. First, the Court emphasized that a school, in relation to off-campus speech, rarely stands in loco parentis as compared to on-campus related speech. Second, the Court recognized that if a school could regulate off-campus speech without limitation, when coupled with regulations of on-campus speech, it could effectively control all the speech a student utters during the full 24-hour day. Finally, schools have an interest in protecting a student’s unpopular expression, especially when it occurs off-campus, as a part of their preparation of students to be contributing members of society. The Court stated that when these features are present, at a minimum, schools have a diminished interest in regulating off-campus speech.
In analyzing the student’s conduct, the Court explained that the student’s conduct was mere criticism, and did not amount to fighting words or obscene language (as the courts have interpreted that term). The Court next considered that the student’s post appeared outside of school hours from a location outside the school. The student did not identify the school in her posts or target any member of the school community with vulgar or abusive language. Further, the student posted her speech through a personal cellphone to a private circle of Snapchat friends.
The Court ultimately decided the case by applying the long-standing “substantial disruption” standard established in its 1969 Tinker v. Des Moines decision. The Court noted the school did not present any evidence of a substantial disruption or threatened harm to the rights of others. At most, there were minor 5-10 minute conversations in classes regarding the event. The Court explained that there must be more than a mere desire to avoid the unpleasantness that accompanies an unpopular viewpoint. Last, the Court addressed the school’s concern regarding team morale. As to this concern, the Court returned to Tinker stating that the simple “undifferentiated fear or apprehension…is not enough to overcome the right to freedom of expression.” The Court concluded the student's conduct did not constitute a substantial disruption. The school’s action, therefore, violated the student’s First Amendment rights on the facts of this case.
Although the Court was careful to state that its decision was specific to the facts of the case, schools can utilize the Court’s analysis when considering whether to address students’ off-campus speech. Schools should focus on whether the speech created a substantial disruption to the school environment, infringed upon the rights of others, related to schoolwork-related rules, occurred during other school-related activities or involved the use of school-provided resources, e.g., school computer networks or devices.
First Amendment student speech issues are almost always fact-specific. They require a detailed analysis of the circumstances involved. We strongly encourage any school district faced with such an issue to confer with counsel.
Please contact a member of Mirick O’Connell’s Public Education Law Group with any questions regarding this Legal Update.