On June 23, 2021, the Supreme Court of the United States issued its decision in B.L. v. Mahanoy Area School District, ruling that a Pennsylvania school district's punishment of a cheerleader's Snapchat containing profanity directed at the cheerleading squad violated her First Amendment rights.  This decision serves to limit the rights of public schools to police and punish students' speech off-campus and on social media.

The Supreme Court relied in part on the “substantial disruption” standard for analyzing student speech set forth in the landmark Tinker v. Des Moines case.  The Supreme Court ultimately reasoned that the cheerleader's Snap, which occurred entirely off-campus, did not cause substantial disruption in the classroom or interference with the educational activities of the school, and should accordingly be afforded First Amendment protection. 

While the Supreme Court based its decision on its well-settled body of case law surrounding free speech in public schools, it broke new ground as this is the first time the Court has addressed social media use within the context of student speech jurisprudence.  While the Court did not make any drastic departures from traditional student speech jurisprudence and declined to create a brand new rule regarding a school's ability to regulate online speech, the decision offers some guidance for public school administrators to navigate the complex issues associated with regulating student expression in the digital age.

Background

This case arose in Pennsylvania in 2017, when Brandi Levy, at that time a minor and a cheerleader at Mahanoy Area High School, expressed her frustrations at being cut from the varsity cheer squad in a Snapchat to her friends.  The Snap in question was taken at a local convenience store and depicted her and a friend holding up middle fingers with the caption reading “F**k school f**k cheer f**k softball f**k everything.” 

One of Levy's friends took a photo of the snap and showed her mother, a member of the cheer coaching staff.  As a result, Levy was suspended from the cheerleading team for violating team rules prohibiting the use of profanity.  Levy attempted to appeal her suspension, but the school's athletic director, superintendent, and school board affirmed.

Levy and her parents then filed a lawsuit in federal court in the Middle District of Pennsylvania.  The District Court analyzed the case under the long-standing Tinker framework and determined that Levy's Snap did not cause a substantial disruption at school, and her suspension from the cheerleading team was accordingly a violation of her First Amendment rights.

The school district appealed the decision to the Third Circuit Court of Appeals.  The Third Circuit affirmed the lower court's decision, but differentiated from its reasoning, holding that the Tinker standard used below was not necessary, as Tinker did not apply to off-campus speech.

The Supreme Court of the United States agreed to hear the case on further appeal to resolve the question of whether Tinker should apply to student speech occurring off-campus.

Legal Framework

Ultimately, the Supreme Court affirmed the lower courts' decisions and held that the school violated Levy's First Amendment rights.  In its opinion, the Supreme Court brings its analysis of B.L.'s Snap back under the long-standing Tinker framework and declined to adopt the Third Circuit's broad, bright-line proposition that the Tinker rules should never apply to off-campus speech.

Under Tinker's general rule, public schools may regulate student speech (on-campus or otherwise, it appears) where such speech may cause a substantial disruption, or materially interfere with the educational activities of the school.  However, when it comes to off-campus or online speech, the Justice Breyer, writing for the majority, states that circumstances favoring regulation of such speech remain few and far between.  It is clear that the First Amendment does not favor the policing of student expressive speech off-campus, but the Court does offer a few examples of extreme circumstances where regulation would be appropriate, such as:

• Instances of serious or severe bullying or harassment targeting particular individuals;
• Threats aimed at teachers or other students;
• Failure to follow rules concerning lessons, the writing of papers (plagiarism), the use of computers, or participation in other online school activities; and
• Breaches of school security devices.

Practical Takeaways

While the Supreme Court did not expressly state that the Tinker rule could never apply to off-campus speech as the Third Circuit had previously, it did make clear that the regulation by a public school of student speech occurring off-campus or online is largely disfavored by the First Amendment.

Accordingly, there are fewer instances today, as opposed to the Court's ruling in this case, where school administrators may punish a student for speech expressed off-campus or online.  However, as the Court noted in its opinion, extreme circumstances, such as severe, targeted bullying or threats of harm to school employees or other students, may still be appropriately punished by school officials.

If there is a lesson to be learned from B.L. v. Mahanoy, it is that school officials should exercise caution when attempting to regulate students' expressive speech off-campus or online, even if the opinions expressed directly involve the school or a school activity or contain unpleasant language.

This case strikes a balance between ensuring students' expressive freedom and also recognizing a school district's need to maintain discipline in carrying out its mission to conduct educational activities without disruption.  Because free speech issues are highly fact-dependent, it is advisable to consult your legal counsel before taking any action regarding student speech.  PKM attorneys are experienced in dealing with First Amendment issues in the education setting and are available to answer any questions you may have on these types of matters.