United States Supreme Court Holds Discipline for Off-Campus Speech Violated First Amendment

Jul 1, 2021

by Kylie Piatt

In an 8-1 decision issued on June 23, 2021, the United States Supreme Court upheld a student’s First Amendment right to free speech related to comments made via social media while off-campus.

In Mahanoy Area School District v. B.L., B.L. was a rising sophomore high school student at Mahanoy Area High School, who tried out for but did not make the school’s varsity cheerleading squad.  Concurrently, B.L. had tried out for a certain position on her private softball team, which she also did not receive.  Over the weekend, B.L. posted two images on Snapchat.  One image depicted B.L. and a friend holding up their middle fingers with a text overlay that read “F*** school f*** softball f*** cheer f*** everything” (the actual caption was unredacted).  The other image was blank with a caption that 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?”  While the images were only sent out via Snapchat to a private group of B.L.’s friends (around 250 people), one student took a screen shot of the images and shared them with one of the cheerleading coaches.  The coaches decided that B.L.’s posts violated team and school rules because the posts used profanity in connect with a school extracurricular activity, and B.L. was suspended from the J.V. cheerleading squad for one year.   After B.L. and her parents were not successful in appealing the school’s decision, they brought suit against the school district in federal district court. The question before the Supreme Court was whether the free speech standard established in Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503 (1969), allowed the school district to discipline B.L. for speech made on social media outside of the school day and off school campus.

In Tinker, the Supreme Court established that students did not “shed their constitutional rights at the schoolhouse gate.”  However, the Court balanced that notion by recognizing that public school districts also have an interest in maintaining good order and discipline on campus.  Accordingly, the Tinker Court held that school districts may regulate student speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.  In years that followed, other Supreme Court cases (e.g., Bethel v. Fraser, Morse v. Frederick, Hazelwood v. Kuhlmeier) established that, given the special characteristics of the school environment, the First Amendment applies differently to student speech made on campus.

In B.L., however, the Third Circuit Court of Appeals affirmed the lower court’s decision finding in favor of B.L., reasoning that the school district could not rely on Tinker to discipline the student for her social media post because B.L.’s speech took place off campus over the weekend.  While the Supreme Court did not agree with the Third Circuit’s reasoning underlying its decision, the Supreme Court agreed that the school’s disciplinary action against B.L. violated the First Amendment.

The Supreme Court generally held that, in most circumstances, there are three features of off-campus student speech that diminish the strength of the unique educational characteristics that allow a school district to regulate on-campus student speech.  First, a school district would not stand in loco parentis when students are off-campus and outside of school hours, and, as a result, its ability to regulate student speech would diminish significantly because that role is better served by students’ parents or guardians.  Second, regulations of off-campus speech together with regulations of on-campus speech would result in the school regulating all speech made by students during the entire day.   For off-campus religious or political speech, the school would have a high burden to meet to justify intervention in those circumstances.  Finally, the Supreme Court reiterated that “America’s public schools are the nurseries of democracy.  Our representative democracy only works if we protect the ‘marketplace of ideas.'”   Accordingly, schools must work to protect the interests of students to express themselves freely, even if what is being said is unpopular.

However, the Supreme Court recognized that there are certain circumstances where a school district would maintain its regulatory interest in off-campus student speech, namely (a) serious or severe bullying or harassment targeting particular individuals; (b) threats aimed at teachers or other students; (c) the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and (d) breaches of school security devices.  Nevertheless, the Supreme Court expressly avoided creating a bright-line rule regarding what counts as “off campus” speech and whether or how a school district may override a student’s First Amendment rights in off-campus speech to prevent a substantial disruption in the school community.

With regard to B.L.’s speech in particular, the Supreme Court held that the school district provided no evidence suggesting that they made a general effort to police the use of vulgarity outside of the classroom.   Additionally, the school district did not provide evidence to support a claim that a substantial disruption occurred in the wake of B.L.’s Snapchat.  As the Supreme Court has held previously, “simple undifferentiated fear or apprehension [of substantial disruption]” is not enough to overcome the right to freedom of expression.”  Thus, the school decision to discipline B.L. violated her First Amendment rights.

Even though the Supreme Court did not provide public school districts with a bright-line rule regarding off-campus speech, the Court’s opinion allows school districts to continue to appropriately respond to student speech, even when made off-campus.  As we advise our clients, the school’s response may not always warrant discipline but may instead provide a “teaching moment” regarding communicating ideas and the impact of our words on our community.  If your school district has questions about the Supreme Court’s decision or First Amendment issues, we encourage you to contact our K-12 Education Law practice groups.

The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri. The Firm also has one of the largest school law practices in Central and Southern Illinois.   Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.

Kylie practices primarily in the areas of education, school litigation, and labor and employment law. She represents school districts, charter schools, and private schools with respect to employment matters, including Title VII, the ADA, the FMLA, and the Missouri Teacher Tenure Act. Kylie also supports schools through matters related to special education, Section 504, student rights, the Missouri Open Meetings Act, Title IX compliance, and civil rights. Kylie also assists school districts with managing various intellectual property law matters, such as enforcement of copyright and trademark rights and infringement defense. Kylie is a member of the Council of School Attorneys and is a regular speaker at statewide and regional school law conferences. Before attending law school at Saint Louis University School of Law, Kylie taught 7th and 8th grade Communication Arts at Ethel Hedgeman Lyle Academy as a corps members with Teach for America ““ St. Louis.