PTAB Strategies and Insights Newsletter - June 2021: The Big F Word: The [F]irst Amendment

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Sterne, Kessler, Goldstein & Fox P.L.L.C.

[co-author: Risa Rahman]

Can our kids still curse about the misery of high school?

The U.S. Supreme Court recently held that a school district violated a teenager’s First Amendment rights when school administrators suspended the teenager, B.L., from the junior varsity cheerleader team for cursing about the team and school on social media. Mahanoy Area Sch. Dist. v. B.L. (Mahanoy), No. 20-255 (June 23, 2021). B.L. used the F-word to vent her frustrations about not making the varsity cheerleading team nor receiving an offer for the right fielder position on the softball team. Mahanoy, slip op. at 2. One Snapchat post displayed B.L. flashing her middle finger at the camera with text stating, “F*** school f*** softball f*** cheer f*** everything.” Id. The other Snapchat post displayed text in which she lamented, “Love how we get told we need a year of JV before we make varsity but that doesn’t matter to anyone else?” Id.

Public school students have limited First Amendment protection for their on-campus speech. Even though public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” their rights “are not automatically coextensive with the rights of adults in other settings.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). First Amendment jurisprudence directs schools to strive for a “balance between protecting the safety and well-being of their students and respecting those same students’ constitutional rights.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001). Accordingly, public schools can sometimes stand in loco parentis, i.e., in the place of parents, to advance the legitimate interests of the school. Mahanoy, slip op. at 5.

Several appellate courts have held that this same authority can be applied to off-campus speech. For example, schools can regulate serious or severe bullying or harassment targeting particular individuals, threats aimed at teachers or students, or the failure to follow rules. Mahanoy, slip op. at 6. See also Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013) (finding the school was within their authority to discipline a student sending instant messages threatening to shoot specific classmates); Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (finding the school had authority to suspend a student who ridiculed another student through derogatory slurs on an online hate page). These cases are clear examples of severe bullying and threats to other students, so the courts found that the schools acted within their authority to promote student safety.

However, there may be cases that are not so clear-cut. With the increase of social media usage, there is a proportional increase in the democratization of ideas. These ideas may include curse words, unpopular or controversial opinions, or ideas that may make others feel uncomfortable. And, of course, public school students are key members in this new marketplace for ideas. So, to what extent can schools regulate a student’s off-campus speech that the school finds a bit… uncouth?

In his majority opinion, Justice Breyer set forth specific categories of student speech that schools may regulate: (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds, (2) speech, uttered during a class trip, that promotes “illegal drug use,”; and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school[.]” Mahanoy, slip op. at 5. Moreover, according to the Tinker standard, schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Id.

Without defining off-campus speech, the Court provided three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Mahanoy, slip op. at 7. First, “a school, in relation to off-campus speech, will rarely stand in loco parentis…off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Id. Second, “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to … speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.” Id. Third, “America’s public schools are the nurseries of democracy” that only thrive “if we protect the ‘marketplace of ideas,’” including unpopular ideas. Id.

The Court found the speech here was legal criticism, not crude, obscene, or fighting speech. Mahanoy, slip op. at 8. Aside from the vulgar language, the Court found that a listener of B.L.’s speech would hear criticism of the team, the team’s coaches, and the school. Id. Even within the context of vulgar language, this is the type of language B.L. would be able to freely use if she were an adult. Id. For a school to justify prohibition of a student’s particular opinion, the Court asserts that the school must have “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Mahanoy, slip op. at 10.

Within the context of school administrators standing in the place of parents, Justice Alito’s concurring opinion stated, that “it is not reasonable to infer [B.L.’s parents] gave the school the authority to regulate [B.L.’s] choice of language when she was off school premises and not engaged in any school activity. And B.L.’s school does not claim that it possesses or makes any effort to exercise the authority to regulate the vocabulary and gestures of all its students 24 hours a day and 365 days a year.” Mahanoy, slip op. at 18-19.

Justice Alito concluded, “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.” Mahanoy, slip op. at 19.

So it’s ok to say, “F*** school f*** softball f*** cheer f*** everything.”

Glad our kids can be kids.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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