On June 23, 2020, in an 8-1 decision, the Supreme Court ruled that the Mahanoy Area School District’s decision to suspend a student from the cheerleading team for posting vulgar language and gestures on social media (outside of school hours and away from the school’s campus) violated the First Amendment.
Mahanoy Area School District v. B.L began in 2017, when 14-year old plaintiff Brandi Levy did not make her public school’s varsity cheerleading team. Levy expressed her disappointment on Snapchat by posting a photo where she had her middle finger raised with expletives commenting on the decision. Coaches saw the screenshots of the post and she was suspended from the junior varsity team for one year. You can find a summary of the case and the oral arguments here.
Justice Breyer wrote the opinion for an 8-1 majority. Justices Alito and Gorsuch filed a concurring opinion and Justice Thomas was the sole dissenter.
The majority disagreed with the lower courts and stated that “we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.” Meaning that, in some instances, the school may in fact have a substantial interest in regulating various kinds of off-campus conduct such as severe bullying, threats aimed at teachers or students, participation in online school activities or security breaches of school computers.
However, the Court also detailed the three specific factors that may make it less likely that schools will have an interest in regulating off-campus speech. First, a student’s off-campus speech will likely fall under the responsibility of the student’s parents, since school officials are not acting in loco parentis. Second, regulation of a student’s off-campus speech could cover everything that a student says or does outside of school, consequently requiring schools to meet a heavier burden to justify intervention. Third, schools have an interest in protecting a student’s unpopular expression, especially when it occurs off-campus, because they are “nurseries of democracy.”
Notably, Justice Breyer explicitly limited the scope of the opinion by stating that the Court would let future cases decide “where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.”
The Court noted that even if schools are able to regulate students’ off-campus speech in certain circumstances, the decision to suspend Levy, here, based on the Snapchat message violated the First Amendment. The Court pointed out that her posts appeared outside of school hours and from a location outside of the school. She did not identify the school in her posts or target a specific member of the school community with vulgar or abusive language. Justice Breyer stated that, “these features of her speech . . . diminish the school’s interest in punishing the student’s utterance.”
In addition, in order contextualize its analysis, the Court discussed three arguments brought forward by the school district. First, the district argued that there was an interest in punishing the use of vulgar language aimed at the school community. Next, the district claimed that it was trying to prevent disruption within the bounds of a school-sponsored extracurricular activity. Third, it argued that there was a concern for team morale. However, in Levy’s case, the Court found that the school district’s interests were weakened because Levy spoke outside the school on her own time; the Court found no evidence of a substantial disruption or a threatened harm to the rights of others; and there was no indication that there had been a serious decline in team morale.
In their concurrence, Justices Alito and Gorsuch emphasized their understanding of the majority opinion. Generally, in their view, given the numerous First Amendment concerns, schools should proceed cautiously before regulating off-campus student speech.
In Justice Thomas’ dissent, he opines that there was “150 years of history supporting the coach” in the decision to suspend the student. He argued that the majority had reached the wrong result because, historically, schools could discipline students in this manner. He felt that the majority failed “to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media.” Furthermore, he argues that “because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.” Justice Thomas thought that Levy’s speech had a proximate tendency to harm the school and would have found that the school’s actions were appropriate. But, among the nine, he stood alone in this view.
This decision has allowed both sides to claim victory – a victory for Levy on the facts of her specific case, but also a rejection of the lower courts’ notion that off-campus speech is completely out of bounds for school discipline.
This narrow ruling, however, provides limited guidance on a school district’s ability to regulate off-campus speech in any given context. Since the Supreme Court did not set a bright line rule for the regulation off-campus student speech, school administrators and their counsel should approach these situations cautiously and expect future litigation to clarify the parameters of permissible measures. In general, school districts may respond to off-campus speech if they conclude that the speech is creating a substantial disruption of learning or threatening the protection of the school community, and those inquiries will be highly fact-specific.
If your school district has any questions regarding the regulation student speech, contact John Borkowski, Aleks Rushing, Skye Parr, Catarina Colón, Mackenzie Conway or your Husch Blackwell education attorney.