As many high school students are walking the stage for graduation, the Supreme Court is readying for summer, issuing a flurry of decisions. One, B.L. v. Mahanoy Area School District (594 U.S. _____ (2021)) is a big win for student free speech rights in public schools. It was also just the right decision.
Our Legal Alert from a week or so ago shared the details of the case. The “Cliff Notes” version: B.L. was not selected for the varsity cheer squad and was relegated to the junior varsity. Annoyed at this and the fact that another freshman was put on the varsity squad, she expressed her disagreement with the coach by (of course) posting to Snapchat: “Fuck school, fuck softball, fuck cheer, fuck everything.” One of her 250 followers took a screenshot of the post and shared it with the principal. B.L. was suspended “for using profanity in connection with a school extracurricular activity…” (Decision at page 3).
B.L. and her parents sued. The discipline was overturned by the District Court, and that decision was upheld on appeal. The school pressed on to the U.S. Supreme Court and attempted to rely on the Tinker v. Des Moines decision, which held that public schools can regulate speech that would materially and substantially disrupt the work and discipline of the school.
Today, the Court upheld the decision of the lower courts but for different reasons. Agreeing that public schools have the interest set out in Tinker, including when speech is off-campus, that regulatory right is not unfettered and has limits. The Court made clear it does not believe the “special characteristics that give schools additional license to regulate student speech always disappear when … speech takes place off campus.” (Decision at page 5.) It continued, “The school’s regulatory interests remain significant in some off-campus circumstances.” (Decision at page 5).
The Court did not definitively state what type of off-campus activity can or cannot be regulated. It intimated any such activity could vary based on student age, the nature of the school’s off-campus activity or even the impact on the school itself. The Court did, however, offer three features of off-campus speech that distinguish whether a school can regulate student speech (e.g. discipline for it):
- whether the school is standing in the place of parents when the speech is uttered (in loco parentis);
- whether the regulation of the off-campus speech is tantamount to regulating all student speech; and,
- the school’s own interest in protecting a student’s unpopular expression.
This last feature is the most significant and harkens back to Tinker, maybe Voltaire – disagreeing with what one says but defending to the death one’s right to say it.
Applying these principals to B.L., the Court found the features were not met. In fact, they acknowledged that her speech—if stated by an adult—would be protected by the First Amendment. (Decision at page 9.) The Court was persuaded by the fact that her speech took place out of school, outside school hours and did not even identify the school in her posts or any member of the school community. And she used her own cell phone. The Court also found unpersuasive the school’s purported interest in prohibiting students from using vulgar speech. In essence it said, F*%$ that.
Making Alice Cooper and George Orwell smile, Justice Beyer concluded:” … sometimes it is necessary to protect the superfluous in order to preserve the necessary.” (Decision at page 11).
Legally, the decision is significant. It provides a new three-part test or analysis for when off-campus student speech can be regulated and when it cannot. This will be critically important for school leaders and disciplinarians to be mindful of as the new school year begins and student use of social media continues to grow. Prior rules regulating free speech are not thrown out. Rather, they are honed sharper by Mahanoy.
Students do not leave their free speech rights at the schoolhouse gate. Lewd, lascivious speech is not to be tolerated nor is speech which could cause substantial disruption in school. The schoolhouse gate is stretched with the advent of social media, but not all off-campus student speech is fair game. Consideration of the school’s role related to the speech, the nature of the off-campus conduct and the interest in preserving the First Amendment rights of students must all be factored in before speech is quelled or quashed.
Practically, the decision was simply correct. As commentary on this case has noted, the suspension of B.L. was absurd, as was taking the case to the Supreme Court. It is always a comfort when the law follows the practical—and maybe vice versa.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.