On June 23, 2021, the United States Supreme Court ruled that a public high school violated the First Amendment when it suspended a cheerleader over a vulgar social media post, but the court declined to outright prohibit public schools from regulating off-campus speech.

The case, Mahanoy Area School District v. B.L., initially reported in School Board Notes on July 21, 2020, involved a public high school student, B.L., who outside of school hours and away from the school’s campus, transmitted a post containing vulgar language and gestures to her Snapchat friends, criticizing the school and the school’s cheerleading team. Despite the fact that the post was only available for a short period of time and was limited to certain students, when school officials learned of the post, they suspended B. L. from the junior varsity cheerleading squad for the upcoming year, stating the post violated program rules and the school’s rules for student-athlete conduct.

After unsuccessfully challenging that discipline before the board, B. L. and her parents sought relief in federal court, arguing that the one-year cheer team suspension violated B. L.’s First Amendment rights. The District Court agreed and entered judgment in B.L.’s favor. On appeal, the Third Circuit Court of Appeals, an argument in which the NJSBA participated as amicus curiae, not only ruled in B.L.’s favor but concluded public school districts have no authority to punish students for off-campus speech. More specifically, the Third Circuit concluded the standard set in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503 — that school authorities can regulate student speech where the exercise of speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” — does not apply to off-campus speech. In response to the Third Circuit’s ruling, the school district appealed to the U.S. Supreme Court.

The Supreme Court affirmed the Third Circuit’s judgment but disagreed with its reasoning, stating that “the special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates speech that takes place off-campus.” The court provided several examples of “off-campus behavior” that “may” call for school regulation, such as severe bullying or harassment targeting particular people, threats aimed at teachers or other students, participation in online school activities, and breaches of school security devices, including material maintained within school computers. Accordingly, the high court rejected the Third Circuit’s reasoning that Tinker was never applicable in the off-campus context.

However, the Supreme Court also declined to endorse a bright-line rule for deciding what off-campus speech is protected by the First Amendment. Instead, the court explained that three non-exhaustive features of off-campus speech diminish the strength of the school’s regulatory power. First, where a student speaks off campus, it is generally the responsibility of parents, not school officials, to supervise students’ conduct.  Second, courts should be skeptical of off-campus regulation of speech, because allowing schools to regulate both on- and off-campus speech could subject all of a student’s speech to potential school discipline.  Third, since schools are the “nurseries of democracy,” they have an interest in protecting the freedom of speech and teaching respect for people’s right to express messages over which there is disagreement.

Applying those principles, the high court determined that the school could not discipline B.L. for her off-campus Snapchat post, which denigrated the school and its cheerleading team but did not substantially disrupt the school’s operation. The court reasoned that the school’s interests, including teaching good manners, preventing classroom disruption, and preserving team morale, did not outweigh student’s interest in free speech.

For more information on this decision, please contact your district’s board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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