KingSpry | Third Circuit Says Student Off Campus Speech Protected

Third Circuit Tells Schools Hands Off Students’ Off-Campus Speech

Posted on July 8th, 2020
by Dr. Kathleen Conn

In a controversial June 30, 2020 decision, the three judges of the Third Circuit re-interpreted the reach of public schools’ power to regulate, or to discipline students for, off-campus speech posted online.

The result of this decision is that within Pennsylvania, New Jersey and Delaware, the states in the Third Circuit, students’ off-campus speech, even if crude, offensive, or puerile, is protected by the First Amendment and must be tolerated unless it falls under one of the limited exceptions to First Amendment protection.

The facts in the case, B.L. v. Mahanoy Area School District, were not uncommon. B.L., a female junior varsity cheerleader, according to the court, was “frustrated” at failing to be named to the varsity cheerleading team, and anxious about some upcoming examinations. One Saturday when she and a friend were hanging out at a local store, B.L. took their picture together, middle fingers raised, and posted it to her Snapchat account, where it was visible to about 250 friends.  A strings of expletives were superimposed on the photo.

Several cheerleaders and non-cheerleaders were upset by the profanity and notified the cheerleading coaches who then removed B.L. from the team for violating the team rules about refraining from foul language and from demeaning cheerleading.

B.L. sued the school district, alleging a First Amendment violation and various criticisms about the team rules purporting to govern the speech of team members.

The Middle District court of Pennsylvania ruled that B.L. did not waive her speech rights by joining the team and that since her speech was off-campus, and did not cause substantial disruption of the school environment, the district court ruled in her favor. The school district appealed to the Third Circuit Court of Appeals.

In its 51-page decision, the Third Circuit analyzed a panoply of precedential student speech decisions from lower courts, intermediate appellate courts, and the Supreme Court.

Chief among the referenced decisions was the Supreme Court decision Tinker v. Des Moines Independent Community School District, where the Court ruled that “students do not shed their constitutional rights to freedom of speech at the schoolhouse gate,” and stated that to regulate students’ speech, the school must show that the student speech caused substantial disruption of school operations.

The Third Circuit noted, however, that the overwhelming acceptance and use of the internet and social media have blurred the location of the schoolhouse gate and the line between on-campus and off-campus speech. Citing the “complex doctrinal web” spun off from the simple words of the First Amendment, that “Congress shall make no law . . . abridging the freedom of speech,” the Third Circuit announced that its task was to “discern and then enforce” the line between on-campus and off-campus speech. Uncertainty about where that line stood, the court said, had caused confusion and conflicting decisions in the lower courts and that lack of clarity also chilled free expression.

The Third Circuit ultimately decided that B.L.’s Snapchat posting was off-campus speech and that the Mahanoy Area School District had infringed her First Amendment right to freedom of speech.

However, the court did not stop there. Noting how the internet and social media had so far expanded the possibility that student speech would reach the school, brought to school by students other than the original speaker, the Tinker’s test of whether a student’s speech caused substantial disruption of school operations, or reasonable fear of its occurrence, cannot apply to off-campus speech.

Therefore, the Third Circuit said, schools cannot regulate or impose discipline for student speech delivered “outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”  Nothing in their decision, the court noted, questions schools’ comprehensive authority to regulate student speech within the school environment, but Tinker simply cannot apply to student speech that occurs off-campus. That off-campus speech, like B.L.’s speech, is protected by the First Amendment unless it falls under one of the limited exceptions to the First Amendment protection such as threats of violence or harassment of specific persons.

Bottom Line for Schools

Does the B.L. decision mean that schools must tolerate crude, profane, offensive language? If the language does not occur in the school environment or under the school’s auspices, the answer in the Third Circuit may now be “yes.” Does this mean that schools should abandon all attempts to teach students appropriate speech and behavior? Fortunately, that answer is likely “no.”

By emphasizing that schools are still the speech police when students are under their control, the Third Circuit is telling schools to give up that control when students exit their metaphorical gates. Many court decisions speak to the importance of schools teaching students about their American freedoms, not just in history classes, but in the way they treat their students and respect their rights. But is participation in an extracurricular activity a student “right”?

However, juxtaposing this Third Circuit decision with the recently-promulgated new Title IX Regulations which limit the responsibility of school districts to investigate off-campus sexual harassment, signals a new era, one in which schools have no duty to respond to inappropriate student conduct or speech outside of the school context, even if it is brought to the school’s attention. If K-12 schools are no longer in loco parentis, the question is whether all biological parents and caregivers will be up to the task of doing the job of parenting without the schools’ help.  

If you have a question, please contact your legal counsel or one of the education attorneys at KingSpry.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.