Mediaboss Marketing

05 July 2021

Taft Stettinius & Hollister

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In Mahanoy Area School District v. B.L.,decided on June 23, the U.S. Supreme Courtreaffirmed thatschools can punish students for speech that "materiallydisrupts" school operation and discipline, even if that speechoccurs outside of school. Schools can punish "off-campus"cyberbullying, academic dishonesty, and disruptions to virtuallearning environments the technology-enabled, off-campusanalogues to traditional school disciplinary issues. But outside ofthose core school-related areas, school administration should treadcarefully. Off campus, students enjoy robust First Amendmentfreedoms, as long as their speech does not threaten a materialdisruption to school order and discipline.

More than 50 years ago, in Tinker v. Des Moines IndependentCommunity School District, the court held that students enjoya First Amendment right to free speech. But, the court held, schoolofficials may regulate speech that "would materially andsubstantially disrupt the work and discipline of the school."Since then, the court has occasionally opined on what kinds ofspeech a school can regulate. But this year, the court explainedfor the first time where a school may regulate speech.

Of course, when the court decided Tinker in 1969,virtually all school instruction took place in physical buildings,and commercial internet access was still a quarter century away.So, it was generally understood that the Tinker ruleapplied principally to on-campus speech. But as it often does,technology forced the court to take another look this year inMahanoy.

Mahanoy started in 2017 when a high school freshman,"B.L.," tried out for the varsity cheerleading squad atMahanoy Area High School in Eastern Pennsylvania. She did not makethe team, but was instead assigned to the junior varsity squad forthe year. That weekend, an upset B.L. posted a Snapchat photo taken off campus at a local convenience storeof her and a friend flipping off the camera. She captioned thephoto with profanity we do not need to repeat in a law bulletin.Several Mahanoy students, including members of the cheerleadingsquad, saw the post and complained to school administration. Theschool suspended B.L. from cheerleading for the year.

In an 8-1 decision written by Justice Breyer, the court heldthat the school violated B.L.'s First Amendment rights. Thecourt first explained that the Tinker rule applies tooff-campus speech. The court recognized that "on campus"is not just a physical building anymore and threats toschool safety, operations, and discipline can come from anywhere.With virtual learning, "my camera isn't working" hasreplaced napping in the back of the class, and students can bedisruptive from the comfort of their own living rooms asmany of us experienced during the pandemic. With internet access,it is much easier to plagiarize a paper. Social media means thatstudents can bully each other from anywhere, at any time. All ofthese things, the court explained, are forms of speech and conductthat schools were free to regulate under Tinker when theytook place on school grounds. The school still has an interest inpolicing them.

But the court also explained that three features of theoff-campus setting weaken a school's interest in policing it and thus limit the school's authority to do so. First,a school does not stand in for parents ("in locoparentis," in legal jargon) when students are off-campus;instead, parents are primarily responsible for policing theirkids' off-campus speech. Second, from a student'sperspective, if the school can regulate both on-campus andoff-campus speech, then it has effective control over astudent's entire 24-hour day. Under such a rule, a school couldeven penalize a student for her religious and political activities something Tinker was never intended to allow. Andthird, schools are charged with teaching students how to be goodcitizens; that includes teaching the civic virtue of protecting thefreedom of even unpopular speech.

So how did those principles apply to B.L.'s Snapchat story?Unsurprisingly, the court held that B.L.'s parents, not theschool, were responsible for policing her weekend activities at aneighborhood convenience store. The court found that B.L.'sspeech did not cause any disruption to the work or discipline ofthe school, beyond a few minutes of students asking about the post.The court set a high evidentiary hurdle for schools: the school wasliable here because no disruption ever materialized, and the schoolcould not show that B.L.'s tirade posed a serious risk offuture harm to others. That speech might upset others is not enoughto show a substantial disruption though the court offeredno guidance on when protected "upsetting speech" turnsinto unprotected bullying. The court acknowledged thatprofanity-laced Snapchat photo does not appear to merit FirstAmendment protection, but "in what otherwise might seem atrifling and annoying instance of individual distasteful abuse of aprivilege, these fundamental societal values are trulyimplicated."

A final note on the practical outcome: in October of 2017 the beginning of B.L.'s sophomore year, a federaldistrict court issued a preliminary injunction that reinstated herto the cheerleading squad. The final judgment in 2019 included adeclaration that the school violated B.L.'s First Amendmentrights, an order that the school expunge the incident from herdisciplinary records, and an award of nominal ($1) damages andattorney fees. The U.S. Supreme Court affirmed that judgment. B.L.is now in college.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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