At the end of April, the U.S. Supreme Court heard oral arguments in the case of B.L. v. Mahanoy Area School District. At issue was the applicability of Tinker to speech made off school premises and when school was not in session. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the U.S. Supreme Court held that student speech that materially and substantially disrupts the school setting may be regulated. Fast-forward fifty years, and we are now faced with what was almost certainly unforeseeable at the time that decision was made—the reach of social media and instantaneous technology.
In Mahanoy, B.L., a freshman at the time, had tried out for cheerleader for her upcoming sophomore year. She did not make the varsity squad and was placed on the junior varsity squad once again. In her frustration over this, during non-school hours and away from campus at a local hangout, the Cocoa Hut, B.L. made a Snapchat in which she and a friend posed with their middle fingers held up. The accompanying caption read as follows (except that the curse words in the post were spelled out rather than starred): “f*** school f*** softball f*** cheer f*** everything.” This was posted to her personal Snapchat account and screenshots of it were taken before the message expired. When her cheer coaches found out about the snap, B.L. was suspended from cheerleading for one year. After a failed appeal to the school board, B.L.’s parents filed suit against the district in federal district court.
The court granted summary judgment in favor of B.L., finding that her First Amendment rights had been violated because her speech was made off-campus (and therefore could not be regulated) and because there was no actual or foreseeable substantial disruption within the school setting as a result of the speech. On appeal, the Third Circuit Court of Appeals upheld the decision. Although the panel’s decision was unanimous, it remained to be determined whether the standard set forth in Tinker could be extended outside the school setting to off-campus online speech. It was on this narrow question that the U.S. Supreme Court agreed to hear arguments.
From reading the exchanges between the lawyers and the Supreme Court Justices, it became clear this is not an easy issue. In the internet era, it’s difficult to draw a definitive line between what is to be considered school speech versus non-school speech. Something that is composed off campus could be read and distributed moments later on campus. Balancing of interests is at stake. On the one hand, schools must be able to effectively deal with issues of cyberbullying and other types of speech that do not occur on school grounds but which can infiltrate the school and disrupt operations. On the other hand, the prospect of a school being able to reach into students' personal lives outside those boundaries could have chilling effects on their free speech rights.
Many educators and attorneys are eagerly awaiting this decision. I will keep you posted.
We have all had those students who ranked somewhere on the autism spectrum, but did we do all we could to help them reach their potential? I have to admit I was ill-equipped and probably still am, but after reading an article in this week’s Parade magazine, Movie Magic by Nicola Bridges, my heart was warmed with promise.
Recently at a school lawyers’ conference, the topic of school website accessibility compliance was discussed. To be honest, I hadn’t had previous occasion to think about this. In case you haven’t either, you should be aware that the protections afforded by the Americans with Disabilities Act (ADA) extend to websites.
Commentary on the Budget Cuts from Financial Services Director Andy EvansThe...