The U.S. Supreme Court left many unanswered questions in its recent decision about the power of schools to punish a student’s off-color, off-campus speech. Although the justices ruled in favor of the student, they left the door open to numerous instances in which off-campus speech could be properly regulated, including cases of bullying, threats or harassment.

As a result, we encourage all of our clients to immediately review their student codes of conduct to ensure that their provisions do not contain any restrictions on student speech that would be inconsistent with the Court’s decision in Mahanoy Area School District v. B.L. or prior decisions on students’ freedom of expression.

We also expect that the continued prevalence of electronic forms of communication and social media on students’ computers, phones, and wrists will inevitably lead to more challenging situations – and lawsuits – for schools. Because the approach to each challenge will hinge on the specific facts of the case, we encourage our clients to reach out for guidance before disciplining a student for their off-campus speech.

This guidance is important because while each situation will be unique, the law in this area will continue to develop. In light of Mahanoy, a school’s decision to discipline a student for off-campus speech must be thought of both in terms of the need to maintain discipline in the school and from a litigation perspective. That requires consideration of both the claims and defenses that might be raised in litigation, but also the risks of litigation. And that is of particular significance in this area – First Amendment litigation – given that a school district that loses such a lawsuit could be required to reimburse a student’s attorneys’ fees under Section 1988.

Background on the Mahanoy Case

In Mahanoy, B.L., a rising high school sophomore, after learning that she had not made her public high school’s varsity cheerleading team, expressed her disappointment on social media. That weekend, B.L. and a friend visited a local convenience store where she posted two images to Snapchat. One was a picture of B.L. and her friend with their middle fingers raised with the caption: “Fuck school fuck softball fuck cheer fuck everything.” The other image was blank but had a caption that read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” B.L. posted both photos to her Snapchat “story,” which were viewable to B.L.’s 250 Snapchat “friends,” including other School District students and members of the cheerleading team. At least one of those team members saved B.L.’s posts and reshared them with other members of the team and the cheerleading coaches.

The following week, several cheerleaders and other students approached the cheerleading coaches “visibly upset” about the images. The coaches ultimately decided that because one of the photos used profanity in connection with a school extracurricular activity, B.L.’s post violated team and school rules and warranted her suspension from the cheerleading team for the following year.

B.L. and her parents sued the School District, alleging that by suspending B.L. for her Snapchat post, the School District had violated B.L.’s First Amendment rights. The District Court for the Middle District of Pennsylvania ruled in favor of B.L., a decision that was later upheld on appeal by the Third Circuit Court of Appeals. The Third Circuit concluded that the well-established standard for schools to restrict students’ speech stemming from Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), did not apply because schools do not have a special license to regulate student speech that occurs off campus.

Supreme Court Decision

The U.S. Supreme Court agreed with the Third Circuit that the School District violated B.L.’s First Amendment rights, but it rejected the appellate court’s reasoning that the Tinker standard did not apply to off-campus speech. This is significant because the Court essentially determined that a school district may regulate students’ off-campus speech without violating the First Amendment. The tricky question for school districts is when.

In determining that the School District had violated B..L.’s First Amendment rights, the Court discussed three features of off-campus speech that distinguish a school district’s ability to regulate off-campus speech from their ability to regulate on-campus speech. First, with respect to off-campus speech, a school will rarely stand in loco parentis. In other words, in most cases when a student is off campus, school employees will not be responsible for the student. Second, the regulation of off-campus speech could mean that a student’s speech would be regulated 24 hours a day: when the student is in school and when they are not. Third, schools have an interest in protecting a student’s unpopular opinion, especially when that expression occurs off campus. The Court noted that all of these considerations generally weigh against a school’s regulation of students’ off-campus speech.

Even so, the Court specifically stated, “We leave for future cases to decide here, when, and how these features mean the speaker’s off-campus location will make the critical difference” implying that a school might be able to show that even with the above considerations that weigh against regulating off-campus speech, a school may be justified in doing so.

The Court specifically noted several types of off-campus speech that might warrant school regulation including:

• serious or severe bulling or harassment targeting specific individuals
• threats aimed at teachers or other students
• a student’s failure to follow rules concerning lessons
• the writing of papers
• the use of school computers; participation in online school activities
• breaches of school security devices

Although the Court did not provide clear guidance as to when these types of off-campus speech could be regulated, a close reading of its opinion provides some guidance. The Court determined that the School District had overstepped in punishing B.L. for her off-campus speech because her posts:

• did not amount to fighting words
• were not obscene
• did not identify the school in her posts or target any member of the school community with vulgar or abusive language
• were transmitted through a personal cellphone to an audience consisting of her private circle of Snapchat friends as opposed to on a school-issued device transmitted to the general school community
• were not made under circumstances in which the school stood in loco parentis

The Court also noted that the School District had not presented any evidence of a general effort to prevent students from using vulgarity outside the classroom or that there was a “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the School District’s action. To the contrary, the Court reasoned that the School District’s interest in teaching good manners was not sufficient to overcome B.L.’s interest in free expression. And the School District’s concern about team morale was nothing more than “undifferentiated fear or apprehension” that was not enough to overcome B.L.’s right to freedom of expression.

Future Possible Cases

Based on the Court’s emphasis of the above circumstances, we can infer that if a school were to encounter a situation in which a student’s off-campus speech did satisfy one or more of the above special circumstances, the school might be justified in penalizing the student for their off-campus speech – without running afoul of the First Amendment. Because the right to freedom of expression is sacrosanct, though, a school district would be on even more solid ground to regulate a student’s off-campus speech if the speech satisfied several of the above special characteristics.

Consider the following hypothetical situation: a school district disciplined a student for using their a school-issued laptop to send abusive, threatening messages to another student while participating in a school-sponsored off-campus trip. In that situation, a court might be more likely to rule in the school’s favor because in that case, the school could demonstrate that that the student’s off-campus speech amounted to fighting words; targeted a member of the school community with abusive language; was made on a school-issued device; and was made in a situation in which the school stood in loco parentis (during a school-sponsored trip). And if the school could show that these messages resulted in a substantial disruption to the school community, it would have even further justification to demonstrate that its discipline of the student was warranted and did not violate the First Amendment.

The School District’s challenge in Mahanoy was that B.L.’s speech, although crude and slightly disruptive to the school community, did not rise to the level of a substantial disruption or meet any of the other special characteristics noted by the Court that would give the School District leeway to regulate her speech, overcoming the First Amendment’s strong protection.

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