Mahanoy School District v. B.L.:
The Supreme Court Rules on Student Online Off-Campus Free Speech Rights
B.L. v. Mahanoy Area School District v. B.L., (June 23, 2021)
After 30+ years of lower federal court decisions on the extent to which public schools may discipline a student for online off-campus speech that affects the school community, the Supreme Court finally weighed in on this important issue on June 23, 2021, in Mahanoy Area School District v. B.L.
B.L.’s Snap, Suspension from Cheerleading, and Lawsuit
The case started when B.L., a high school junior at the time, did not make the varsity cheerleading squad. She posted a Snap in which she and a friend are pictured at a local convenience store holding up their middle fingers, with a caption containing vulgar language directed at the school. The Snap was shared with 250 of the student’s SnapChat friends, many of whom were fellow students and members of the cheerleading squad.
The school removed the student from JV cheerleading for violating team rules requiring respect for others, discouraging foul language and inappropriate gestures, and prohibiting negative information about cheerleading, cheerleaders, or coaches from being placed on the internet. B.L. and her family filed a complaint in federal district court claiming that the school’s actions violated B.L.’s First Amendment free speech rights. That court ruled in the student’s favor, and ordered the school to reinstate her to the cheerleading squad.
The school district appealed the ruling to U.S. Court of Appeals for the Third Circuit, which also decided in the student’s favor. (Read NSBA's amicus brief to the Third Circuit.) That court determined that the school district violated B.L.’s First Amendment speech rights, explaining that the school officials’ action could not be justified under Bethel v. Fraser (1986), in which the Supreme Court decided that schools could regulate on-campus vulgar speech. But the Third Circuit took its decision a step further than any federal court had before: it decided that the famous standard used by federal courts in student free speech cases – handed down by the Supreme Court in Tinker v. Des Moines Independent School District (1969) – could not be applied to off-campus student speech that takes place outside of school platforms and that is not reasonably interpreted as bearing the school’s imprimatur.
Tinker v. Des Moines Independent School District (1969)
Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The school district petitioned the Supreme Court to hear the case. Read NSBA’s amicus brief in support of the school district’s petition. The Supreme Court agreed to decide the case.
B.L.’s Case Goes to the Supreme Court
NSBA filed another amicus brief at the merits stage of the case, urging the Court not to abandon the Tinker standard in online off-campus cases. Court have applied Tinker for decades, NSBA explained, even when the student speech occurred online and off-campus. The Tinker standard has built-in limitations to guard against free speech violations, as it requires schools to show disruption or invasion of the rights of others before discipline can be justified. The Third Circuit’s categorical rule would prevent schools from addressing harmful and disruptive speech that occurs online and off-campus but affects the school environment, including harassment and bullying.
At the oral argument held April 28, 2021, the justices raised myriad hypothetical scenarios, pushing the advocates for both sides to draw lines beyond which schools could not go. They asked about political or religious speech that is directed at the school, political or religious speech that is directed at one student and causes harm, offensive speech couched in political or moral terms, and many more. The student’s advocate warned the Court that giving school officials broad authority to regulate off-campus online speech would enable them to regulate political and religious speech, 24 hours a day/seven days a week. The school district argued that Tinker should apply off-campus only when the student targeted both the school audience and a school topic.
Supreme Court Rules for B.L., but Recognizes Schools’ Interest in Addressing Some Student Online Off-Campus Speech
In the waning days of the October 2020 term, an 8-1 majority of the Supreme Court decided that the public school had overstepped the student’s free speech rights in this case, but that schools retained an interest in addressing student online off-campus speech in certain contexts. In an opinion written by Stephen Breyer, whose father was legal counsel to the San Francisco Unified School District for 40 years, the Court rejected the bright-line rule stated by the Third Circuit, noting that “[t]he special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates speech that takes place off campus.” Although public schools have diminished authority to regulate student’s off-campus speech than on-campus speech, Breyer explained, they retain significant interests in addressing off-campus student speech in certain circumstances: “severe or pervasive bullying or harassment targeting particular individuals;” “threats aimed at teachers or other students;” “failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities;” and “breaches of school security devices, including material maintained on school computers.” Here, the district was found to have overstepped because the school was not acting in the place of the parent at the time, nor had it attempted to regulate vulgarity off-campus, nor was there much evidence of any disruption or serious decline to team morale.
The Court declined to provide a complete list of exceptions to the general rule that schools have diminished interest in regulating off-campus speech, but did identify three features of off-campus speech that weaken schools’ ability to regulate it: (1) parents are in charge off-campus and schools rarely act in loco parentis when students are not engaged in a school activity; (2) courts should be skeptical of 24/7/365 regulation of student speech, especially as schools have a “heavy burden” to justify intervention in off-campus political/religious speech: and (4) as “nurseries of democracy,” schools have an interest in protecting students’ expression of unpopular ideas, especially off-campus.
Justice Alito wrote a lengthy concurrence joined by Justice Gorsuch saying the framework for the off-campus speech regulation analysis should based on the understanding that parents relinquish some of their children’s rights to free speech by enrolling them in school. But parents only relinquish the measure of authority necessary to allow schools to carry out their “state-mandated educational missions” as well as perform other functions to which parents explicitly or implicitly agree, such as extracurricular activities. The delegation of authority over off-campus speech depends on the nature of the speech and the circumstances under which it occurred, Alito opined. School regulation of speech that takes place during extensions of the regular school program, such as homework, online instruction, transportation to and from school, extracurricular activities, or field trips would be appropriate.
“If today’s decision teaches any lesson, it must be that regulation of many types of off-premises student speech raises serious First Amendment concerns and school officials should proceed cautiously before venturing into this territory.”
Finally, Justice Thomas wrote a dissent consistent with his past assertions that schools should have almost complete authority over student speech and expression in school. He believed the majority did not “attempt to explain” why the Court should not apply the historical rule laid out in the mid-nineteenth century by a state court recognizing teacher authority to discipline a student for off-campus speech “because the speech had a direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and insubordination.” Thomas opined that applying this historical rule to the current case and “assuming that B.L.’s speech occurred off campus, the purpose and effect of B.L.’s speech was to degrade the [program and cheerleading staff] in front of ‘other pupils,’ thus having ‘a direct and immediate tendency to . . . subvert the [cheerleading coach’s] authority.’ As a result, the coach had authority to discipline B.L.”
Mahanoy Area School District v. B.L.: Implications for Schools
Friends of the Court
Following the Supreme Court ruling, Francisco Negrón, NSBA’s Chief Legal Officer, and Sonja Trainor, NSBA’s Managing Director of Legal Advocacy, discuss the implications of the decision for schools and school districts.