Update: School is out for summer, but free speech isn’t. The Supreme Court ruled 8-1 on June 23 that the Pennsylvania school district in this case violated the cheerleader’s First Amendment rights by suspending her for Snapchat posts made off-campus. Harris Beach attorneys are reviewing the decision and will issue an updated legal alert.

Sometime after “schools’ out for summer,” the U.S. Supreme Court will render a decision in what could be a seminal case in the student free speech realm, or not.  Mahanoy Area School District v. B.L. raises the issue of whether the First Amendment permits schools to penalize students for off-campus speech—specifically social media speech. SCOTUS heard oral argument in the case on April 28, 2021.

Mahanoy came to fruition in 2017 when a high school sophomore was suspended from the junior varsity cheerleading team for the entire season after posting an image of herself and a friend on Snapchat with their middle fingers raised and the caption “f—school  f—softball f—cheer f—everything.” The post was visible for 24 hours by 250 of her friends – one of whom screenshotted it and sent it to her school.

The high school sophomore, Brandi Levy, made this post as a response to not making her school’s varsity team. She was suspended after the school saw it. After the suspension, Levy’s parents brought a First Amendment lawsuit against the school. The U.S. Court of Appeals for the Third Circuit ruled that the school could not punish Levy for her off-campus speech.

Commentary on the case has observed that it might have been something of an overreach for the Mahanoy Area School District to have gone so far as suspending Ms. Levy. Others posited that the case never should have been in court at all. Nevertheless, Ms. Levy was suspended and her case found its way to the Supreme Court.

The central issue in the case is whether the school is permitted to penalize a student for strictly off-campus conduct and, in this instance, conduct that only appeared on social media.  To answer that question the Court looks to the First Amendment and the progeny of cases interpreting it in the context of student free speech.

It is well established that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). Equally, schools may punish student speech that is vulgar, lewd, or indecent. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Student action even off-campus which has a substantial likelihood of causing disruption in school can also be punished. [Tinker]. And even when speech at a school event is not per se disruptive but goes against the school’s policies, it can also be punished. Morse v Frederick 591 U.S. 393 (2007).  There are more cases over the past half-century but these remain the essential tenets, evolved since Tinker.

Historically, the school environment has been understood to include school grounds, school transportation, off-campus school activities, and communications through a school email or phone account. The novelties of social media, though, have blurred the lines of what action is and is not within the “schoolhouse gate.” And with all schooling being remote due to the pandemic, the schoolhouse gate did not move — it was eradicated.

And, the Morse case demonstrates the Court agrees that even nonsensical statements (“Bong Hits for Jesus”) can be punished when a school seems to dislike them under the guise of saying they offend the policies and beliefs of the school district.

Here, Brandi Levy was off-campus.  She was online. Her comments were made, not to the school or any person, but rather only to the select people who follow her on Snapchat.  In the social media world, her comments were essentially private or at least restricted.  No one was forced to see or read them. They did so of their own volition. Further, her comments were clearly born of frustration and/or disagreement with a coach’s decision. (Research shows this is not the first time an athlete has disagreed with a coach’s decision and not the first time an athlete has voiced that discontent.)

For whatever reason the Court decided to take this case, it must now resolve it and come up with a coherent rule of law that can be applied.  A strong argument can be made that Tinker and its progeny should not even apply. This was not speech at school.  Further, the school failed to show any disruption as a result of the speech.  Material disruption or at least likelihood of substantial disruption is what is sought, needed and necessary to curtail speech. Clearly, the school did not like Brandi’s critique.  But, to disagree with what she says should not be enough to punish.

We are fairly certain how George Orwell and Alice Cooper would decide this case.  Whether the Court sides with them or pursues a more restrictive approach will be seen in a few months.   We are watching this case closely and will provide Legal Alert readers with updates as soon as a decision is rendered.

If you have any questions, please contact Partner Douglas E. Gerhardt or the Harris Beach attorney with whom you usually work. Douglas recently presented to The New York State Council of School Superintendents on First Amendment issues. He has also taught Constitutional Law.

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.