Today, the U.S. Supreme Court issued its ruling in Mahanoy Area School District v. B.L. With this case, the U.S. Supreme Court opined that Mahanoy Area School District violated B.L.’s First Amendment rights when it punished her for posting vulgar criticism of her cheerleading program via social media while outside of school. In order to put this opinion into context, below is a brief summary of the legal precedents leading up to today’s opinion, the facts of the Mahanoy case, and the implications of the Court’s ruling today.
Previous Free Speech Cases
When dealing with student free speech issues, one should always start with the premise that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). That being said, the U.S. Supreme Court has also stated that “[t]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, and the Constitution does not compel school officials to surrender control of the American public school system to public school students.” Bethel Sch. Dist. No. 403 V. Fraser, 478 U.S. 675 (1986). Based on the holdings in Tinker and Bethel, the U.S. Supreme Court has previously opined that a school’s authority to discipline a student changes depending on whether the speech was conveyed at school or outside of school.
Student speech occurring while in school, on school property, or at a school sponsored event can be disciplined as follows:
- A public school may categorically prohibit vulgar, lewd, indecent, or plainly offensive speech. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986);
- A public school may regulate speech related to the promotion of drug use. See Morse v. Frederick, 551 U.S. 393 (2007);
- A public school may regulate speech appearing in a school-sponsored forum or a forum that appears school-sponsored (e.g., post to school’s twitter) when the speech is inconsistent with pedagogical concerns. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); and
- A public school may regulate speech that is reasonably likely to substantially and materially interfere with schoolwork or discipline. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
In general, a public school district can discipline student speech occurring off school property where the speech has a substantial nexus to the school and will interfere or disrupt schoolwork or discipline. For example, a district was not permitted to discipline a student for creating a fake MySpace profile of his high school principal from his grandmother’s home because there was not “a sufficient nexus between the speech and a substantial disruption of the school environment” since no classes were cancelled, no widespread disruption occurred, and there was no violence or student disciplinary action. Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010). By contrast, a district was permitted to discipline a student for posting disparaging, sexual remarks about another student on MySpace from her home computer because the student’s speech interfered with and disrupted schoolwork, and the student could reasonably have expected that the content would reach the school and impact the school environment. Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011)(citing Tinker).
Additionally, a public school can discipline student speech occurring outside of the school setting if the speech conveys a “true threat.” Speech conveys a “true threat” when the speaker reasonably could have foreseen that the speech would be perceived as a threat, or whether a reasonable recipient would perceive it as such. For example, a district can discipline a student for sending personal messages via MySpace to his friends threatening to shoot people at the school on a specific date because the messages constituted a “true threat” and the threat of a school shooting certainly qualified as speech that “might reasonably lead school authorities to forecast a substantial or material interference with school activities” or that collides with the rights of other students to be secure.” Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013).
Summary of Facts in Mahanoy Area School District v. B.L.
In 2017, B.L. was a high school cheerleader in the Mahanoy Area School District. Toward the end of her freshman year B.L. tried out for the high school varsity cheer squad. Soon after learning that she did not make the team, she posted a snap (via the snapchat app) with a picture of herself and a friend sticking out their tongues and their middle fingers. The photo included the caption: “f*** school f*** softball f*** cheer f*** everything” (the original caption was not censored). Notably, B.L.’s snap was taken and sent on a Saturday, off school property, using her personal cell phone and her personal snapchat account.
One of B.L.’s friends who received the snap preserved it with a screenshot and showed it to her mother, who happened to be a cheer coach. Upon deliberation, the cheer coaches determined that the snap violated the cheerleading code of conduct (i.e., an extracurricular student code of conduct). As a consequence, B.L. was suspended from cheerleading for her entire sophomore year.
Ruling in Mahanoy Area School District v. B.L.
Today, the U.S. Supreme Court ruled that the Mahanoy Area School District violated B.L.’s right to freedom of speech when it suspended her from cheerleading for a year. In short, the Court applied the Tinker standard, and found “no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” In so ruling, the Court opined that it was not a substantial disruption for students to spend 5 to 10 minute discussing the post in algebra class over several days. Additionally, the Court’s opined that it was not a substantial disruption that other cheerleaders found the post upsetting. As additional support for its decision, the Court cited the following facts of the Mahanoy case:
- “[B.L.]’s posts appeared outside of school hours from a location outside of school.”
- “She did not identify the school in her posts or target any member of the school community with vulgar or abusive language.”
- “B.L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.”
In general, the Court’s opinion emphasized that public schools have a diminished interest in disciplining out-of-school speech as compared to in-school speech. In supporting this general message, the Court articulated a few doctrinal statements that may be helpful for future cases. These statements include:
- “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related responsibility.”
- “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
- “The strength of [the school’s] anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time.”
- “[T]he school itself has an interest in protecting a student’s unpopular expression” because “America’s public schools are the nurseries of democracy.”
Despite this general message, the Court did acknowledge that there are certain situations where a public school district has a significant interest in disciplining out-of-school behavior and/or speech. The Court’s list included:
- “serious or severe bullying or harassment targeting particular individuals;”
- “threats aimed at teachers or other students;”
- “the 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, including material maintained within school computers.”
In summary, the ruling in Mahanoy confirms that public school districts should continue relying on the Tinker standard when determining whether it has the authority to discipline out-of-school speech – i.e., there must be a substantial nexus to the school and evidence that the speech will interfere or disrupt schoolwork or discipline. Additionally, the Court’s opinion makes it clear that public schools’ decisions to discipline out-of-school speech will be harshly scrutinized by courts, particularly where there is not clear evidence of a substantial disruption or the speech does not fall into one of the four significant interest categories set forth by the Court.
This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.