The Supreme Court is Set to Determine The Scope of Public School Speech Rights

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Recently, the Supreme Court granted review of 14 new cases, ranging from sentences for drug crimes to the cleanup of hazardous waste in Guam. Despite a lack of high-profile cases on the docket, including a challenge to Mississippi’s 15-week abortion ban, there is one case that will play a pivotal role in defining the First Amendment rights of public school students. The case concerning this issue, Mahanoy Area School District v. B.L., involves a high school cheerleader who was removed from the junior-varsity team after sending vulgar and offensive Snapchat posts to classmates. Disgruntled by her rejection from the varsity team, the cheerleader (known in the case as B.L) targeted her school and fellow teammates, stating “Fuck school fuck softball fuck cheer fuck everything,” and “[l]ove how me and [another student] get told we need a year of jv before we make varsity but that [sic] doesn’t matter to anyone else.”

After failing to be reinstated on the team, B.L’s parents filed a lawsuit against the Mahanoy Area School District, arguing that the school had violated her First Amendment rights. Winning at both the district and circuit court level, the case was appealed to the U.S Supreme Court, which subsequently granted cert. With oral arguments not yet decided, the Justices are tasked with deciding if schools have the authority to police off-campus speech that is closely related to the school environment.

While the First Amendment’s guarantee of free speech applies to nearly all facets of public life, it does not maintain its expansive reach in the context of public schools. The ability of schools to limit some forms of speech comes from the 1969 case Tinker v. Des Moines Independent School District. In that case, the Supreme Court ruled that students wearing black armbands to protest the Vietnam war “[do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” especially out of “a mere desire to avoid...discomfort and unpleasantness.” At the same time, the Court held that in keeping with the schools’ obligation “to prescribe and control conduct in schools,” administrators could discipline students whose speech “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” 

Though the Tinker opinion doesn’t indicate if schools may police off-campus speech, lower courts have ruled that the “substantial disruption” exception permits them to do so. In fact, the 2nd, 4th, 5th, 8th and 9th Circuits, along with various state courts have applied the exception in cases where social media posts were involved. For example, in 2015 the en banc Fifth Circuit observed that “the Internet, cellphones, smartphones, and digital social media” and “their sweeping adoption by students” permit schools to “react quickly and efficiently to protect students and faculty [from threats] intentionally directed at the school community.” Mirroring the outlook of the Fifth Circuit, the Eighth Circuit held that “the location from which [students speak] may be less important than the [fact] that...posts [may be] directed at” the school community.

Ruling that these approaches were “unsatisfying” for “swep[ing] far too much speech into the realm of schools’ authority,” the Third Circuit broke off from other circuits in ruling that “Tinker does not apply to off-campus speech.” The majority reasoned that “any effect on the school environment” from off-campus speech “[would] depend on others’ choices and reactions,” and that offering a bright-line rejection of schools’ authority to regulate off-campus speech would provide “upfront clarity” to Tinker. In the wake of the Third Circuit’s ruling, schools in its jurisdiction may be exposed to money damage suits for policing off-campus speech.

The Third Circuit’s decision reaches more than 5,800 K-12 schools, affecting their ability to combat off-campus speech no matter how pertinent it is to campus life, or how disruptive it becomes to a learning environment. It is not far-fetched to suggest that these schools will have to reformulate their disciplinary policies that they have relied on for years. Take the policy from the Philadelphia school district, which states that “off-campus or after hours expression is governed by this policy if the student expression...is likely to materially or substantially interfere with the educational process, including school activities, school work, or discipline and order on school property or at school functions.” State law compelling schools to respond to disruptive speech is likely to be placed in the crosshairs of the decision. In New Jersey, all schools are required to take “appropriate responses to harassment, intimidation, or bullying...that occurs off school grounds.” Despite the harmful and predictable disruptions that may arise within the school environment, administrators must now tread along the tight rope if they’re to discipline students for their behavior. 

The Third Circuit’s decision is somewhat odd given its previous acknowledgement of how technology could disrupt the school environment. As it illuminated a decade earlier, “With the tools of modern technology, a student could, with malice aforethought, engineer egregiously disruptive events and, if the troublemaker were savvy enough to tweet the organizing communications from his or her cellphone while standing one foot outside school property, the school administrators might succeed in heading off actual disruption in the building, but would be left powerless to discipline the student.” Given the prospect of the Third Circuit’s illustration, the reversal of sentiment in the current case is especially puzzling.

Outside of the Tinker-based substantial disruption test, there is also the factor of extracurricular participation. When students choose to take part in these activities, they are bound by prescribed standards of conduct that may intrude on certain rights. As the Supreme Court explained in a 1995 case involving the use of urinalysis for drug testing, students who “choos[e] to ‘go out for the team’...voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally…Somewhat like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges.” Extracurricular activities may also play a crucial role in disseminating important values to students outside of the classroom, such as leadership, sportsmanship, teamwork, perseverance, and fairness. When students interfere with the expectations necessary for instilling these values, coaches and teachers should be able to discipline those students regardless of the origin of the interference or disruptive activity.

The previously mentioned point is also relevant to the 1 out of 5 students who are bullied in American public schools. While potential bullies may utilize different methods for disseminating their speech, the purpose and effect of that speech remains the same in the end. If a student decides to send a hateful message through a group, the consequences of that speech are the same, whether it was sent on a walk home or in a school cafeteria. In the case of B.L, it is highly likely that her snap would have had the same effect on team discipline, morale, and the surrounding school environment had she sent it while in school.

School disciplinary cases, with speech far more sensitive than that of B.L, continue to arise within public schools across the U.S. Just last year, a school was sued by students in Michigan who were suspended for forming a snapchat group with the phrases “white power” and “the South will rise again.” In Georgia, a school was rocked by racial tension when students sent a racist tik tok video parodying a cooking show. In it, they made statements such as “recipes for n-----s,” “ingredients” like “black,” “don’t have a dad,” and “rob [whites].” Despite the fact that both instances occurred off-campus, the students’ fellow classmates were able to receive the posts and likewise discuss their contents during the course of the school day.

Though the nature of free speech rights makes the act of balancing a challenge for state and federal courts, the problem is not solved by creating a rule that strips the school of any authority. Even in the many instances where schools overreact to student’s speech, it is important to maintain the tools and disciplinary measures that are important and, oftentimes, necessary. 

Works Cited

[1] Nanos, Elura. “A High School Cheerleader's F-Bombs on Snapchat Could Blow Up Free Speech for U.S. Students.” Law & Crime, 29 Dec. 2020, lawandcrime.com/supreme-court/a-high-school-cheerleaders-f-bombs-on-snapchat-could-blow-up-free-speech-for-u-s-students/. 

[2] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 507-509 (1969)

[3] 393 U.S. 503, 508-509 (1969)

[4] Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 393 (5th Cir. 2015)

[5] D.J.M. v. Hannibal Public School Dist. No. 60, 647 F.3d 754, 766 (8th Cir. 2011)

[6] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 188 (3d Cir. 2020)

[7] 964 F.3d 170, 190 (3d Cir. 2020)

[8] “Digest of Education Statistics, 2019.” National Center for Education Statistics, nces.ed.gov/programs/digest/d19/.

[9] 20 STUDENT EXPRESSION/DISTRIBUTION AND POSTING OF MATERIALS. The School District of Philadelphia, 26 Apr. 2018, www.philasd.org/src/wp-content/uploads/sites/80/2018/03/Policies-for-Review-2-1.pdf. 

[10] N.J Stat. § 18A:37-15.3

[11] Layshock v. Hermitage School Dist, 650 F.3d 205, 222 (3d Cir. 2010)

[12] Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 657-658 (1995)

[13] “Student Reports of Bullying: Results From the 2017 School Crime Supplement to the National Crime Victimization Survey.” National Center for Education Statistics, 2019, pp. T-6-T-7. 

[14] Child A. ex rel. Parents A. v. Saline Area Sch., Case No. 20-cv-10363 (E.D. Mich. Aug. 20, 2020)

[15] Atwell, Ashleigh. “Georgia High School Students Expelled After Posting Video Detailing a Racist Recipe For Black People.” Atlanta Black Star, 19 Apr. 2020, atlantablackstar.com/2020/04/19/two-georgia-high-school-seniors-expelled-after-posting-a-racist-tiktok-video-about-black-people-we-are-very-proud-of-our-diversity/.