In the last newsletter I outlined the issues presented in oral argument to the U.S. Supreme Court in the case of B.L. v. Mahanoy Area School District. As you will recall, 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 took up the case.
On June 23rd, the Court’s opinion was released. In an 8-1 decision, the Court ruled in favor of B.L., finding that her free speech rights had been violated when the school imposed discipline based on her off-campus speech during non-school hours. The majority opinion, written by Justice Breyer, held that “[w]hile public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B.L.’s interest in free expression in this case.”
Specifically, the Court found that B.L.’s language, while vulgar, was part of a First Amendment-protected message of criticism, made on her own time, while the school was not acting in loco parentis (in the place of parents). B.L.’s actions caused no substantial disruption within the school setting and did not actually or potentially harm the rights of others, and there was no serious impact on team morale within the cheer squad as a result of what she said/did.
The Court acknowledged that there were certain circumstances—such as severe bullying/harassment, threats and failure to follow rules concerning the use of computers—where a school’s authority to regulate student speech could be extended off-campus. Although unwilling to establish a broad rule regarding specifically what types of off-campus speech could be regulated by school officials, the Court did outline three features that frequently serve to distinguish schools’ efforts to regulate off-campus versus on-campus speech.
First, schools rarely stand in loco parentis with regard to off-campus speech the way they do when students are physically present. Second, from the viewpoint of a student, if schools are free to regulate speech both during the school day and during non-school time, the student is essentially deprived of the ability to engage in any protected speech. Third, as “nurseries of democracy”, public schools are charged with responsibility for actually protecting unpopular student speech, especially when such speech is made off-campus. The Court emphasized that these three features diminish schools’ “First Amendment leeway” in terms of what they can regulate within the “special characteristics” of the school environment.
There is no doubt that this ruling will not definitively settle the issue and will likely lead to more questions based on different fact scenarios as new litigation finds its way into the system. The Court made it clear that the “when, where and how” of the three features it set forth will be hashed out in future cases. The Mahanoy case was but one example.
I hope everyone is having a great end to the school year. I know you're now in a race to the finish and everyone is really busy, but I wanted to let you know about some new training I’m doing.
A collection of Oklahoma education-related news of the week.
It’s official: summer is here! Hopefully, you are looking forward to some well-deserved downtime with your family and with colleagues. Not being a warm weather fan, I am already looking forward to the fall with its college football and Indian tacos at the Oklahoma State Fair.