On June 23, 2021 the U.S. Supreme Court (SCOTUS) issued its decision in Mahanoy Area School District v. B.L, holding that while public schools may have a special interest in regulating some off-campus student speech, a student’s post on Snapchat occurring off-campus containing vulgar statements and gestures are entitled to First Amendment protection.
The student in the case failed to make the varsity cheerleading team at the end of her freshman year, but was offered and given a spot on the junior varsity cheerleading team. The disgruntled student vented by posting two posts on Snapchat while visiting a local convenience store over the weekend, including a post stating: “[Expletive] school [expletive] softball [expletive] cheer [expletive] everything.” The posts were only sent to the student’s private group of friends on Snapchat, but another student on the cheerleading team took pictures of the posts from a different cellphone and the posts circulated throughout the team and school.
In response, the cheerleading team suspended the student from the junior varsity team for the upcoming year because the posts used profanity in connection with a school extracurricular activity, and violated team and school rules. The suspension was affirmed by the school’s athletic director, principal, superintendent, and school board. The student, with her parents, filed suit in Federal District Court claiming that punishing the student for her speech violated the First Amendment.
SCOTUS held that the special interests provided by the school district did not overcome the student’s interest in free expression in this particular case. The decision does not provide a clear rule as to when a school may have a special interest in regulating off-campus speech, but states that a school’s regulatory interests remain significant in some off-campus circumstances. The circumstances of off-campus behavior that may call for school regulation include:
- serious or severe bullying or harassment targeting particular individuals
- threats aimed at teachers or students
- the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities
- breaches of school security devices, including material maintained within school computers
The decision analyzed three factors differentiating off-campus speech from on-campus speech that diminishes the leeway the First Amendment gives to schools to regulate speech:
- First, a school will rarely stand in loco parentis for speech occurring off-campus because the geographic nature of being off-campus falls within the zone of parental responsibility.
- Second, regulation of off-campus speech in addition to on-campus speech would encompass a student’s full day, thus requiring courts to be more skeptical of off-campus regulations because a student would not be able to engage in a particular kind of speech at all.
- Third, a school itself has an interest in protecting a student’s unpopular expression, especially when it takes place off-campus, because public schools are “the nurseries of democracy.”
SCOTUS analyzed three interests the school may have had in prohibiting students from using vulgar language to criticize a school team or its coaches when it may be circulated to others in the school community, but decided that none of these interests are sufficient enough to overcome the student’s interest of free expression.
- First, the school’s interest in teaching good manners was not sufficient because the speech occurred off-campus where the school did not stand in loco parentis, the post encompassed an expression of the student’s irritation with the school and cheerleading communities, and the school does not take other measures to prevent students from using vulgarity off-campus.
- Second, the school’s interest in preventing disruption within a school-sponsored extracurricular activity was not sufficient because there was no evidence of a “substantial disruption” or a threatened harm to the right of others as required by Tinker v. Des Moines. The only evidence provided regarding the disruption was that the discussion of the incident took place in class for 5 to 10 minutes for a couple of days and some members of the cheerleading team were upset.
- Third, the school’s interest concerning team morale was not sufficient because there was little evidence to suggest any serious decline in team morale that would create a substantial disruption of the school’s effort to maintain team cohesion.
Although this decision does not provide a clear rule of when a school may regulate off-campus speech, it is clear that a post on Snapchat involving vulgar language by a student expressing general displeasure about school and cheerleading, which does not cause a substantial disruption, is protected as free expression under the First Amendment. SCOTUS acknowledges that there will be many more cases that develop the framework for when a school may regulate off-campus speech, but this decision serves as a starting point for schools in the meantime.
A school taking action against a student for off-campus speech should analyze (1) whether the school has a special interest in the particular off-campus circumstances; (2) the factors differentiating off-campus speech from on-campus speech that diminish the leeway a school has in regulating speech; and (3) whether the special interest of the school is supported by enough evidence to overcome a student’s interest in free expression, which is at its most when the student is off-campus.
For more information, please contact Patricia A. Hennessy or your Pennsylvania Barton Gilman education lawyer, Kathy Nagle, Chris Barrett or Adam Attia at 215-874-0946 or by email.
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