In June, the United States Supreme Court released its opinion in Mahanoy Area School District v. B.L. and for the first time addressed the issue of whether, and to what extent, public schools can regulate student speech that occurs off campus.
In Mahanoy, a high school sophomore, B.L., failed to make the varsity cheerleading squad. Upset that an incoming freshman made varsity over her, she posted a Snapchat of her and a friend with their middle fingers raised and the caption, “F—school f— softball f— cheer f— everything.” A second post read, “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The Snap was shared with 250 of her friends, many of whom were students and members of the cheer squad.
Cheerleading team rules required respect for others, discouraged foul language and inappropriate gestures, and prohibited negative information about cheerleading, cheerleaders, or coaches from being placed on the internet. Finding that B.L.’s posts violated these rules, the school suspended B.L. from the junior varsity cheerleading team for the upcoming year. B.L. then sued the school district, alleging that the suspension violated the First Amendment.
The federal district court granted summary judgment in B.L.’s favor, finding the only disruptions were some “visibly upset” cheerleaders and a 5–10-minute discussion in an algebra class taught by a coach. The Third Circuit Court of Appeals affirmed and announced a bright-line rule that schools do not have authority to discipline students for off-campus speech.
The Supreme Court affirmed the decision but rejected the Third Circuit’s bright-line on-campus/off-campus distinction. The Court noted the well-established Tinker standard that schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court held that these interests are diminished when the speaker is off campus, but do not entirely disappear. Schools’ regulatory interests in student speech remain significant in certain contexts, including serious or severe bullying and harassment targeting particular individuals; threats aimed at teachers or other students; failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.
The Court declined to “determine precisely which of many school-related off-campus activities belong on such a list” and did not articulate a broad First Amendment rule regarding when and how off campus speech may be regulated. The Court did, however, highlight three features of off-campus speech that diminish a school’s leeway to regulate students in these circumstances. First, off-campus speech is normally in the zone of parental, rather than school-related, responsibility. Second, regulations of off-campus speech would effectively include all student speech, 24/7, under school control. Third, schools have an interest in protecting a student’s unpopular expression, especially off campus.
In light of these considerations, the Court found B.L.’s situation to be a clear case where the school’s reach went too far. Any interest in anti-vulgarity was minimal given that B.L. spoke on her own time outside of school and in circumstances in which the school was not standing in loco parentis. There was no evidence of any substantial disruption or threatened harm to the rights of others to justify the discipline under the Tinker standard, nor any actual evidence of a decline in team morale. Therefore, the district’s exceeded its authority and its discipline of B.L. violated her First Amendment rights.
Though this decision may not have provided the definitive rule that school districts had hoped, it does make clear that discipline of students for off campus speech will be met with skepticism by courts. The Tinker standard remains in effect, but the negative impact of an off-campus statement needs to be significant to justify regulation by a school. Student social media criticism of school programs or policies, or vulgar venting without disruption, targeting, or harm, will generally be protected. But bullying, harassing or threatening speech may be addressed if it materially interferes with the rights of others in the school community—regardless of whether it occurs on- or off-campus.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Adam Wattenbarger is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law. For more information, please contact him at (612) 337-9306 or kennedy-graven.com.
Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or kennedy-graven.com.
© Adam C. Wattenbarger and Gregory S. Madsen (2021). Used by permission.