In an 8-1 majority opinion, the Supreme Court ruled in Mahanoy Area School District v. B.L. that a Pennsylvania high school violated a student’s First Amendment rights when the school suspended her from the cheerleading squad after posting profane language and gestures on her social media account.
Background on the case and our article on the case’s oral argument can be found here.
“Bright Line” Rule Rejected
In what some are calling a “bookend” to Tinker, the case turned on whether schools can monitor a student’s off-campus speech. Although the school argued that Tinker’s “substantial disruption” test should apply to off-campus speech just as it does to speech made on school grounds, the Supreme Court rejected this argument and the student claimed victory in the first student speech case the Court has heard in fifteen years.
Writing for the majority, Justice Breyer stated that while schools may have an interest in controlling off-campus speech of students, the student did not threaten, harass, or bully any member of the school community. Thus, the Supreme Court ruled that the school’s decision to suspend the student from the Mahanoy cheerleading squad violated her right to free speech.
The Supreme Court rejected the Third Circuit’s bright line rule that held Tinker did not apply to off-campus speech. In so ruling, the Supreme Court effectively overturned the law to what it was before the Third Circuit flashed a red light to schools on disciplining off-campus speech.
The Court, however, raised a yellow caution light and stated that “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
First, though school officials may take the role of a student’s parents during school hours, off-campus speech falls in a zone typically regulated by parents. Second, students would be unable to engage in any form of speech if schools regulate their speech the entire day, and finally, schools have a responsibility to protect their students’ unpopular expressions because “America’s public schools are the nurseries of democracy.”
In this case, her post was made outside of school hours and not on school grounds. Similarly, the post was distributed on her personal cell phone to a private group of friends, and she did not specifically identify the school.
Justice Breyer stated that these combined factors diminished the school’s right to punish the student.
Bottom Line for Schools
While the bright line rule imposed by the Third Circuit may have constrained a school’s ability to regulate hurtful, or even disruptive expression, becoming increasingly prevalent with social media, at least it provided some guidance for school officials. The Supreme Court’s decision now returns schools to the Tinker test with the strong caution for schools to tread lightly when it comes to off-campus expression.
Before schools discipline students for their online rants, they should be strongly encouraged to consult their solicitor.