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TBJ DECEMBER 2021

Protecting a Student’s Right to be ‘Snappy’

The First Amendment and student speech outside of school.

Written by Christopher A. Brown


A Snapchat caption using profanity before the words “school,” “softball,” “cheer,” and “everything” resulted in B.L., a Mahanoy Area High School student, getting suspended from her school’s cheerleading squad for a year. The U.S. Supreme Court held that in suspending B.L. for the statements made in her Snapchat, the school district violated B.L.’s First Amendment rights.

The case of Mahanoy Area School District v. B.L., decided in June 2021, arises from Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. The case was the high court’s first student free speech case of the internet era involving schools regulating student speech outside of school.



Facts
At the end of her freshman year, B.L. tried out to be a varsity cheerleader but failed to make the squad and was offered a spot on the junior varsity. That weekend, B.L. visited the Cocoa Hut, a local convenience store, and used her smartphone to post the profanity-laced snap. Importantly, the speech took place outside of school hours and away from the school’s campus. The snap was viewed and shared by hundreds of people culminating in it getting forwarded to the school’s cheerleading coaches.

The coaches suspended B.L. from the junior varsity cheerleading squad for the upcoming year because they decided that the profanity-ridden snap violated team and school rules. School officials and the school board backed the coaches’ decision. B.L., together with her parents, filed suit arguing that punishing B.L. for her speech violated the First Amendment. The district court sided with B.L. as did the U.S. Court of Appeals for the 3rd Circuit.

The U.S. Supreme Court granted the petition for certiorari asking whether schools can regulate student speech that occurs off campus.



History of School Speech Regulations
The significance of the U.S. Supreme Court taking this case is that it is the first case in which the court has considered the constitutionality of a public school’s attempt to regulate true off-premises student speech.1

Regulation of student speech at school is commonplace. While students do not “shed their constitutional rights to freedom of speech or expression,” even “at the schoolhouse gate,”2 courts must apply the First Amendment “in light of the special characteristics of the school environment.”3

It is axiomatic that the First Amendment allows free speech rights of public-school students to be restricted because the “special characteristics of the school environment” justify special rules.4 In his concurrence, Justice Neil Gorsuch writes, as a practical matter, that it is impossible to see how a school could function if administrators and teachers could not regulate on-premises student speech. Gorsuch then lists various examples of schools imposing content-based restrictions in the classroom including: 1) in a math class the teacher can insist that students talk about math, not some other subject; 2) when a teacher asks a question, the teacher must have the authority to insist that the student respond to that question and not some other question; and 3) a teacher must also have the authority to speak without interruption and to demand that students refrain from interrupting one another.

However, outside of these mundane day-to-day regulations that allow schools to functionally operate, the U.S. Supreme Court previously outlined specific categories of student speech that schools may regulate in certain circumstances, including: (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds,5 (2) speech, uttered during a class trip, that promotes “illegal drug use,”6 (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper,7 and (4) speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”8



Analysis of the Court
In an 8-1 decision, the Supreme Court explicitly declined to issue “a broad, highly general rule” or bright-line test for whether schools may regulate speech that takes place off campus. Writing for the nearly unanimous court, Justice Stephen Breyer said it would be improper to give schools unfettered permission to police student speech both on and off campus.

The court analyzes three “features” of off-campus speech that may distinguish a school’s efforts to regulate off-campus speech from regulations of on-campus speech.

First, the doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. The court stated that a school, in relation to off-campus speech, will rarely stand in loco parentis, thus diminishing the strength of any school regulation of off-campus speech.

Second, if regulations of off-campus speech are coupled with regulations of on-campus speech, then the regulations on a student are present 24 hours a day. Given that regulation of off-campus speech could produce a hyper-regulatory environment, the court noted that courts must be more skeptical of a school’s efforts to regulate off-campus speech, particularly when it comes to political or religious speech that occurs outside school or a school program or activity.

Third, a student’s unpopular expression, especially when the expression takes place off campus, warrants an interest in protection from the school as the court reasoned that representative democracy only works if the marketplace of ideas is protected.

The school identified its interests in regulating B.L.’s speech to include teaching good manners, avoiding classroom disruptions, and preserving team morale. The court weighed these interests against the three factors described above and found them lacking. First, B.L. spoke under circumstances where the school did not stand in loco parentis as there is no reason to believe B.L.’s parents had delegated to school officials their own control of B.L.’s behavior at the Cocoa Hut. Second, B.L. spoke outside of school on her own time, and there was no evidence in the record of a “substantial disruption” of school. Third, while acknowledging that it “might be tempting to dismiss B.L.’s words as unworthy” of First Amendment protections, it is sometimes “necessary to protect the superfluous in order to preserve the necessary.”9



Impact of Mahanoy
While the court decided that the school infringed on B.L.’s First Amendment rights in regulating her off-campus speech, it stopped short of saying a school could never regulate off-campus speech. If the court will not provide a bright-line rule, what can we take away from the ruling?

1) The First Amendment permits public schools to regulate some student speech that does not occur on school premises during the regular school day, but this authority is more limited than the authority that schools exercise with respect to on-premises speech, and courts should be skeptical about the constitutionality of the regulation of off-premises speech.

2) Some potential instances identified by the court where off-premises speech could potentially be regulated includes speech involving serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

3) Public school students have the right to express unpopular ideas on public issues, even when those ideas are expressed in language that some find inappropriate or hurtful.

4) Public schools have the duty to teach students that freedom of speech, including unpopular speech, is essential to our form of self-government.

5) A school district risks violating a student’s First Amendment rights if it punishes a student for social media postings on their own time and away from school premises.TBJ

 

Notes
1. Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038, 2048, 210 L. Ed. 2d 403 (2021) (Gorsuch, J., concurring in judgment).
2. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969).
3. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).
4. Morse v. Frederick, 551 U.S. 393, 397, 403, 405, 406, n. 2, 408, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007).
5. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).
6. See Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007).
7. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).
8. Tinker, 393 U.S., at 513, 89 S. Ct. 733.
9. See Tyson & Brother v. Banton, 273 U.S. 418, 447, 47 S.Ct. 426, 71 L.Ed. 718 (1927) (Holmes, J., dissenting).



Christopher BrownCHRISTOPHER A. BROWN
is an attorney with Cantey Hanger in Fort Worth, where he focuses on eminent domain/property rights, commercial litigation, and construction law. He is also an elected trustee to the Hurst-Euless-Bedford Independent School District.

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