June 25, 2021Client Alert

SCOTUS Rules School District Violated Cheerleader’s Free Speech, Affirming Limits on Public Schools’ Ability to Regulate Students’ Off-Campus Speech

This week, in an 8-1 decision, the Supreme Court held that a Pennsylvania school district violated a student’s First Amendment free speech rights by disciplining her for sending private, vulgar social media messages criticizing the school and the school’s cheerleading team while off-campus and outside of school hours. In so ruling, the Court acknowledged that its prior precedent permitting public schools special First Amendment leeway to regulate on-campus speech is diminished, though not outright prohibited, in light of unique features of off-campus speech that distinguish off-campus speech from on-campus speech.

The case, Mahanoy Area School District v. B.L., marks a rare student victory before the Supreme Court in a First Amendment free speech case. Although Mahanoy is a narrow, fact-specific ruling, the case presents a fresh perspective and will require educational institutions to reevaluate how to manage difficult questions related to the regulation of student speech and student discipline.

On-Campus vs. Off-Campus Speech: The Limits on Public School Regulation

The Court has long held that public school students generally retain their First Amendment rights while on-campus. In Tinker v. Des Moines Independent Community School District, the Court’s 1969 decision siding with students who wore black armbands at school to protest the Vietnam War, the Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression” even “at the school house gate.”

Nevertheless, Tinker also acknowledged that schools have a special interest in regulating on-campus student speech rights when that speech substantially disrupts classwork or involves substantial disorder or invasion of the rights of others. The Court has identified multiple “special characteristics” of the on-campus school environment justifying this special leeway; chiefly, that (1) schools at times stand in place of parents; and (2) schools are not practically able to function if administrators and teachers could not regulate on-campus student speech. Following Tinker, subsequent Supreme Court decisions have eroded on campus student free speech rights, resulting in many lower courts setting a standard that allows schools considerable freedom on-campus to discipline students for conduct that the First Amendment might otherwise protect.

Until Mahanoy, the Court has never addressed whether Tinker permits First Amendment leeway to public schools to regulate off-campus speech. The proliferation of social media, however, which is at the heart of Mahanoy, has challenged the “special characteristics” of the on-campus educational environment. In taking up the question, Mahanoy ruled there are some occasions when schools can reach beyond campus to regulate speech, but beyond school grounds, a school’s power to punish students for speech diminishes significantly.

Mahanoy Area School District v. B.L.

A. Factual Background

In 2017, Brandi Levy, then a minor and public high school sophomore, failed to make her school’s varsity cheerleading team and a private softball team. On a weekend, at a local convenience store, Ms. Levy sent two Snapchats to approximately 250 friends, one containing vulgar language and gestures criticizing both her public high school and the school’s cheerleading team. Specifically, Ms. Levy captioned the photo “F— school f—softball f—cheer f—everything,” with the photo depicting Ms. Levy and her friend with middle fingers raised. The Snaps automatically disappeared after 24 hours; naturally, however, a cheerleading coach received a screenshot of the photo from her daughter. The images spread, and several cheerleaders approached the cheerleading coaches upset about Ms. Levy’s posts. Questions about the posts persisted during a couple of Algebra classes taught by one of the two cheerleading coaches for, at most, 5-10 minutes.

Despite Ms. Levy’s apologies, the cheerleading coaches suspended Ms. Levy from the junior varsity team for one year after deeming the posts profane, in violation of team and school rules. The school’s athletic director, principal, superintendent, and school board all affirmed Ms. Levy’s suspension from the team.

B. Ms. Levy and Her Parents Sue the School District in Federal Court

Ms. Levy alleged that the school district violated her First Amendment free speech rights by suspending her from the team because of the Snaps. A federal district court found in Ms. Levy’s favor, first granting injunctive relief and then summary judgment in her favor. In granting summary judgment, the district court held that Ms. Levy’s Snaps had not caused substantial disruption at the school and, therefore, the school district did not have authority under Tinker to regulate her off-campus speech.

The Third Circuit affirmed, but it went a step further. In affirming the district court’s grant of summary judgment, the Third Circuit ruled that public schools categorically have no special interest to regulate student speech occurring off-campus, i.e., Tinker did not apply to off-campus speech. The school district appealed, petitioning the Court to decide whether Tinker applies to off-campus student speech.

C. The Supreme Court Affirms the Third Circuit and Finds Tinker Applies to Off-Campus Speech in More Limited Circumstances than On-Campus Speech

The Supreme Court affirmed the Third Circuit’s holding, but it rejected the lower court’s sweeping categorical conclusion that Tinker does not apply to off-campus speech. The Court noted how schools’ regulatory interests remain significant in several off-campus circumstances, e.g., serious or severe bullying or harassment targeting particular individuals and cheating. The Court showed reticence, however, to pronounce a broad First Amendment rule delineating what counts as “off-campus” speech and whether and how such off-campus speech yields First Amendment protection, particularly given the advent of social media and computer-based learning.

Instead, the Court pointed to three features of off-campus speech that often (but not always) distinguish off-campus speech from on-campus speech, noting that these features diminish the strength of a school’s “special characteristics” justifying regulation of off-campus speech. First, in relation to off-campus speech, schools will rarely stand in loco parentis, i.e., in place of parents. Second, the Court cautioned against 24-hour regulation of student speech, in particular when it comes to political or religious speech that occurs outside school or a school activity. Third, the Court emphasized that public schools are civic institutions that have a duty to protect unpopular expression, especially when the expression takes place off-campus. Taken together, the Court explained, these three features of off-campus speech mean that the leeway the First Amendment grants to public schools to regulate student speech in light of their special characteristics is significantly diminished when that speech is expressed off-campus.

Considering Ms. Levy’s speech, the Court observed the Snaps were crude, but “not fighting words,” and vulgar, but “not obscene,” while noting Ms. Levy would have enjoyed strong First Amendment protection had she uttered her speech as an adult. The Court also highlighted how Ms. Levy’s posts appeared outside of school hours and off-campus, did not target any individual (or even the school, specifically), and she transmitted the Snaps via a private device to a “private” circle of Snapchat friends. The Court lent little credence to the school district’s argument that it had a general interest in promoting “anti-vulgarity,” stating this interest was weakened considerably because Ms. Levy spoke outside of the school on her own time. Likewise, the Court did not see evidence of substantial disruption to the school community, meaning Tinker could not apply, emphasizing that unpleasant or uncomfortable student speech alone does not justify school regulation. Ultimately, while distasteful and somewhat trivial, the Court held that the First Amendment protected Ms. Levy’s off-campus speech free of school regulation.

Takeaways from Mahanoy

Although the Court declined to delineate any clear standard for public schools to know when regulation of off-campus student speech is permissible, Mahanoy still offers helpful guidance. In general, the Court appears to be trending towards affirming greater (i.e., ordinary) First Amendment protection for off-campus student speech from school regulation in the digital age. Public educational institutions should regard Mahanoy as an opportunity to reexamine their disciplinary policies regarding off-campus student speech.

The three distinguishing features of off-campus speech the Court identified in Mahanoy bear repeating. These features diminish the “special characteristics” attendant to public school educational environments that otherwise justify broader student speech regulation on-campus under the First Amendment and Tinker. First, the fact that public schools do not typically stand in place of students’ parents (i.e., in loco parentis) while students are off-campus is a central concept in Mahanoy. For higher education institutions, which normally enroll adults, this feature is even less outcome determinative. Indeed, Justice Alito, joined by Justice Gorsuch, explicitly opined in his concurrence that the majority decision in Mahanoy does not pertain to higher education institutions. Neither the majority nor any other Justice expressed this precise position, suggesting it is prudent for public higher education institutions to review Mahoney with care.

The second and third distinguishing features of off-campus speech are more pertinent to higher education institutions. It is clear the Court considers 24-hour regulation of student speech suspect, for doing so may mean that students cannot engage in off-campus speech at all without fear of discipline from their school. In fact, Mahanoy specifically identifies off-campus “political [and] religious speech” as areas where schools shoulder “a heavy burden” to justify intervention. Nevertheless, there are legitimate unresolved questions about speech that takes place during, or as part of, what amounts to a temporal or spatial extension of the regular school program, e.g., online learning and on-campus living.

For example, if a student expresses any variety of offensive (in the view of the school) rhetoric off-campus, even on social media, without implicating the school or targeting a fellow student, the First Amendment most likely protects this speech because a school may have difficulties arguing how the speech causes substantial disruption to the classroom or invades the rights of others. In other words, Tinker would not permit off-campus school regulation of this speech. Conversely, if the same student expressed the same speech during a seminar in a virtual classroom, or in a school dormitory, then the school has a stronger argument under Tinker to regulate the speech and discipline the student. Mahanoy explicitly acknowledged that the near infinite possible fact patterns involving student speech precluded the Court from drawing any bright line as to what constitutes permissible regulation of off-campus speech tantamount to on-campus speech. At most, Mahanoy serves to remind schools to respect the fact that true off-campus speech outside of school hours exists, and they may not regulate or discipline a student for that speech. Where the line is blurred, however, schools must consider the speech on a careful case-by-case basis before acting.

With respect to the actual content of off-campus student speech, Mahanoy is clear that public schools occupy a prominent place in society as defenders of unpopular opinions. This includes speech on sensitive subjects like politics, religion, and social relations. It is not enough for speech to be offensive or disagreeable to justify regulation. Even if the off-campus speech is deeply offensive to members of the school community and may cause disruption, the First Amendment does not countenance school regulation. The school may suppress the disruption, but it may not punish the off-campus speech that prompted other students to engage in disruption. In other words, the Court emphasizes that schools must protect student speech from the “heckler’s veto.” For example, the First Amendment protects a student who expresses offensive rhetoric, promotes contrary political opinions, espouses racial epithets, or endorses violent ideas off-campus, including on social media, regardless of how offensive or unpopular the speech. Importantly, however, the First Amendment does not protect “true threats”—that is, statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or individuals. Likewise, Mahanoy reaffirms that schools have an inherent special interest in protecting students from serious or severe bullying or harassment, on-campus and off-campus, permitting regulation of that offending speech under Tinker. Absent these circumstances, a school generally may not regulate even deeply offensive off-campus speech aired in general.

Mahanoy is a narrow, fact-based ruling and arguably raises more questions than real answers. Indeed, the Court went out of its way to leave future fact patterns to future cases. At bottom, however, Mahanoy is a cautionary lesson for schools that their ability to regulate off-campus speech is significantly diminished relative to on-campus speech, and the case may signal a trend toward greater First Amendment protection for student speech in general.

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