By: Stuart L. Whitt
On June 23, 2021, the U.S. Supreme Court issued its decision in Mahanoy Area School District v. B.L., No. 20-255, wherein it was asked to decide whether the landmark decision in Tinker, “which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”
B.L. was a student at Mahanoy Area High School in Pennsylvania. At the end of her freshman year, B.L. tried out for a position on the school’s varsity cheerleading squad. She was not selected for the varsity squad but was offered a spot on the junior varsity squad. That weekend, she used her smartphone to post two photos and comments on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B.L. posted the photos and comments to her Snapchat “story” that was available to her “friend” group (which included about 250 friends) for a 24-hour period.
B.L.’s Snapchat posts included vulgar language and gestures criticizing both the school and the school’s cheerleading squad. They were seen by classmates, including some who were on the cheerleading team. At least one cheerleader took pictures of the posts with her smartphone and shared them with others, causing them to spread through the school. Some cheerleaders were upset with the posts and approached one of the cheerleading coaches. After consulting with the principal, the coaches suspended B.L. from the cheerleading team for the upcoming year because the posts used profanity in connection with a school extracurricular activity in violation of team and school rules. B.L.’s subsequent apologies for the posts did not sway the coaches, athletic director, principal, superintendent, or school board, all of whom affirmed the suspension.
B.L. and her parents filed a lawsuit in the Federal District Court, which found in her favor, granting an injunction ordering the school to reinstate her to the cheerleading team. The Court also declared that B.L.’s punishment violated the First Amendment, awarded nominal damages and attorneys fees, and ordered her disciplinary record expunged. The Third Circuit Court of Appeals affirmed and the school appealed to the Supreme Court.
In affirming the lower courts’ rulings, the Supreme Court held that while public schools have a special interest in regulating some off-campus student speech, the special interests offered by the school in this instance were insufficient to overcome B.L.’s interest in free expression. The Court acknowledged that, in Tinker, it stated that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” These special interests do not always disappear when the speech takes place off campus, such as instances of serious or severe bullying or harassment, threats aimed at teachers and other students, breaches of school security devices, and the like.
The Court stated that three features of off-campus speech often distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, school regulation of off-campus speech when coupled with regulations of on-campus speech, include all speech that a student utters during the full 24-hour day. Third, the school should have an interest in protecting the student’s unpopular expression, particularly when it occurs off campus, because “America’s public schools are the nurseries of democracy.” The Court stated that, taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.
Addressing the facts in this case, the Court stated that:
- B.L.’s posts appeared outside of school hours from a location outside of the school, did not identify the school or target any member of the school community, and were transmitted through her personal cellphone to an audience consisting of her private circle of Snapchat friends, all of which diminish the school’s interest in punishing her utterances.
- B.L.’s Snapchat posts were criticism of the rules of a community of which she forms a part and they are entitled to First Amendment protection.
- The school’s claimed interest in teaching good manners and punishing the use of vulgar language was weakened considerably by the fact that she spoke outside of school on her own time where the school did not stand in loco parentis.
- The school’s interest in preventing disruption was not supported by the record, which shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days.”
- There was little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the cheerleading squad.
Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett joined. Justice Thomas dissented.
If you have questions concerning this post, please contact Whitt Law Senior Attorney Brittany Flaherty Theis.