Guidance for Schools regarding the Supreme Court’s Recent Opinion on Freedom of Speech

The United States Supreme Court issued a major decision on Wednesday concerning student First Amendment rights. In Mahanoy Area School District v. B.L., the Court held for the first time that schools have limited power to regulate off-campus student speech.

In this case, a public high school student posted Snapchat videos in which she used vulgar language and gestures criticizing both the school and the school’s cheerleading team. She did so on a weekend while at a coffee shop, off school grounds. As punishment for these videos, and for use of profanity in connection with a school extracurricular activity, the school suspended her from junior varsity cheerleading for one year.

In an 8-1 decision, the Supreme Court held that the suspension violated the student’s First Amendment rights. Because the speech in question occurred off-campus, where the school did not stand in loco parentis, the school’s interest in regulating this speech, in the name of teaching good manners, was limited. The Court also did not agree with the school’s argument that its actions were designed to prevent a material or substantial disruption at the school, given the school’s inability to cite evidence that such a disruption was likely to occur. Therefore, even if the standard set forth in Tinker v. Des Moines applied, the school would not have a legal basis to regulate the speech. As a reminder for readers, Tinker provides that schools may regulate speech that materially disrupts classwork or involves a substantial disorder or invasion of rights of others.

The Court was careful to note that this decision should not be read to prohibit schools from regulating any off-campus student speech, particularly in the era of remote learning. Schools may still regulate off-campus speech where the school has a special interest that is sufficient to overcome a student’s right to freedom of expression. The Court identified some such special interests as:

  • Serious bullying or harassment targeting particular individuals
  • Threats aimed at teachers or other students
  • The failure to follow rules concerning lessons, the writing of papers, use of computers, participation
    in online school activities, and breaches of school security devices.

The Court did not lay out a comprehensive list of school-related off-campus activities that may be regulated. It did, however, specify certain factors that will be considered to determine if regulation is legal. These factors include: the degree to which speech would ordinarily fall under First Amendment protections; proximity to school property; whether the speech occurred during school hours; and the amount of on-campus disruption caused by off-campus conduct.

The Court rejected the lower court conclusion that the First Amendment bars any restriction on off-campus student speech – a position that would have radically altered our understanding of when schools can address off-campus, on-line student speech.

The primary takeaway for schools is that they should be very careful when taking any disciplinary action against students for speech that the student engages in off-campus, including online speech. But it appears that schools may regulate off campus speech where it involves bullying, threats, or school academic or safety issues. Schools should also note the analysis of what does or does not constitute a “disruption” under the Tinker standard. This case is a reminder that, even when Tinker does apply, a school must be able to cite some basis for believing that speech will cause a disruption before it may legally regulate that speech.

If you have any questions about how this case changes the legal landscape for handling student speech issues, please do not hesitate to contact the Drummond Woodsum School Law group. We would be happy to assist.