When May NJ Schools Discipline Students for Off-Campus Speech?

When May NJ Schools Discipline Students for Off-Campus Speech?

SCOTUS recently held that a school district’s decision to suspend a student for social media posts violates the First Amendment...

The U.S. Supreme Court held in Mahanoy Area School District v. B.L. that the school district’s decision to suspend student B. L. from the cheerleading team, for social media posts (posted outside of school hours and away from the school’s campus) containing vulgar language and gestures critical of the school, violates the First Amendment. According to the Court, while public schools may have a special interest in regulating some off-campus student speech, the special interests or “special characteristics” offered by the school were not sufficient to overcome B.L.’s interest in free expression in the case.

Facts of the Case

Mahanoy Area High School student B.L. failed to make her high school’s varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption “fuck cheer” to Snapchat. The snap was visible to about 250 of B.L’s “friends,” many of whom were fellow students and some of whom were cheerleaders. One of B.L.’s teammates took a screenshot of the snap and showed it to one of the team’s two cheerleading coaches. 

B.L. was subsequently suspended from the junior varsity cheerleading squad for a year and her parents appealed that decision to the athletic director, school principal, district superintendent, and school board. After exhausting these avenues, B.L. sued the Mahanoy Area School District (“School District” or “District”). She advanced three claims under 42 U.S.C. § 1983: that her suspension from the team violated the First Amendment; that the school and team rules she allegedly broke are overbroad and viewpoint discriminatory; and that those rules are unconstitutionally vague. 

The District Court granted summary judgment in B.L.’s favor, ruling that the School District had violated her First Amendment rights. The court ruled that B.L.’s snap was off-campus speech and thus not subject to regulation under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). It further found that because B.L.’s snap had not caused any actual or foreseeable substantial disruption of the school environment, her snap was also not subject to discipline under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Under Tinker, to regulate speech school officials must show that “the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The Third Circuit affirmed the judgment, but the panel majority reasoned that Tinker did not apply because schools had no special license to regulate student speech occurring off-campus.

Supreme Court’s Decision

By a vote of 8-1, the Supreme Court held that the school’s disciplinary action violated the First Amendment. The Opinion was written by Justice Stephen Breyer.

In reaching its decision, the Supreme Court disagreed with the Third Circuit’s conclusion that schools can never regulate off-campus speech. “Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus,” Justice Breyer wrote.

The Court clearly stated that the school’s regulatory interests remain significant in some off-campus circumstances. It went on to provide the following examples: “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

The Court declined to establish a bright-line rule for when the regulation of off-campus speech would be appropriate under the First Amendment. “We can, however, mention 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,” Justice Breyer stated. “Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.”

First, the Court noted that a school will rarely stand in loco parentis when a student speaks off campus. It went on to highlight a second feature that from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, may include all the speech a student utters during the full 24-hour day. “That means 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,” Justice Breyer wrote. “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.” Third, the Court emphasized that the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, highlighting that “America’s public schools are the nurseries of democracy.”

With respect to B.L., the Court concluded that the school violated her First Amendment rights when it suspended her from the junior varsity cheerleading squad. In finding that B.L.’s posts are entitled to First Amendment protection, the Court emphasized that the message did not involve features that would place it outside the First Amendment’s ordinary protection. The Court also found that the circumstances of B.L.’s speech diminished the school’s interest in regulation. In support, it cited that B.L.’s posts appeared outside of school hours from a location outside the school; she failed to identify the school in her posts or target any member of the school community with vulgar or abusive language; and. B.L. transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.

Finally, the Court found that the school’s interest in preventing disruption was not supported by the record.  “We can find no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action,” Justice Breyer concluded.

Key Takeaway

Under the Supreme Court’s decision, schools may, in some circumstances, discipline students for speech that occurs off campus. Given, however, that courts will be more skeptical when off-campus speech is involved, schools should tread more carefully and be prepared to justify their actions under the “heavy burden” that has been established.

If you have questions, please contact us

If you have legal concerns related to Supreme Court’s decision and how it may impact your school district, we encourage you to contact John Geppert or a member of Scarinci Hollenbeck’s Education Law Group at 201-896-4100.

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