United States Supreme Court Decision Explains that Public School Students Have Broader Free Speech Protections When Off Campus
In an 8-1 majority opinion, the United States Supreme Court ruled on June 23, 2021 that the Mahanoy School District in Pennsylvania violated the First Amendment rights of a high school cheerleader who argued that she could not be punished by her school for a social media post she made outside of school. With ubiquitous social media in the pockets of everyone from ages 8 to 88, this case has been closely followed to see how the highest Court balances the free speech rights of public school students and the concerns of school administrators over off-campus speech, including speech occurring online that could be considered bullying or that disrupts a school’s ability to educate its students.
In Mahanoy Area School District v. B.L., a Minor, By and Through her Father, LEVY, et al., No. 20-55 (June 23, 2021), Brandi Levy, a student of Mahanoy Area High School, was cut from the school’s varsity cheerleading squad and placed on the junior varsity squad. She reacted, as many young adults might, through social media and posted Snapchat images while off campus on a Saturday, voicing her disappointment about not making the school’s varsity cheerleading squad. The images were posted to Levy’s Snapchat story, allowing any of her approximately 250 friend group members to view the images for a 24-hour period. One of Levy’s posts allegedly contained profanity and an image of Levy and her friend with their middle fingers raised. The cheer coaches learned of these images from teammates and other students who were upset by the posts. After the coaches discussed the situation with the school principal, Levy was advised that she violated school and team rules and suspended from the junior varsity squad for the upcoming year. The school district affirmed the punishment, and Levy and her parents sued, seeking injunctive relief and arguing that punishing Levy’s speech violated the First Amendment.
The District Court
The District Court granted Levy’s requested temporary restraining order and preliminary injunction, consequently ordering the school district to restore Levy to the junior varsity cheerleading squad. The District Court further granted Levy’s motion for summary judgment, finding that the student’s Snapchat posts did not cause “substantial disruption at the school,” relying on the standard in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (“Tinker”), where the Court found that school districts have a special interest in regulating on-campus student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” The District Court also awarded nominal damages, imposed counsel fees against the school district, and ordered the school to expunge Levy’s discipline record for the alleged offense.
Third Circuit Affirmance
On appeal, 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. The school district filed a petition for certiorari.
The issue before the High Court was whether the Court of Appeals for the Third Circuit correctly held that the school’s decision violated the First Amendment. More specifically, does Tinker apply to off-campus speech? The Court held that although public schools have a special interest in regulating some student speech that occurs off campus, the school district’s purported special interests in this matter were not sufficient to overcome Levy’s constitutional right to free speech. Although the Court did not agree with the Third Circuit’s rationale and analysis, the Court did agree with the ultimate decision that the discipline violated the First Amendment.
The Court specifically found that there are certain instances where a school’s regulatory interests may be triggered by off-campus activity, including “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 also identified three key areas that weaken the argument that a school district should be able to regulate off-campus speech:
- A school district will “rarely stand in loco parentis” when a student speaks off campus.
- “[C]ourts 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.”
- A school district has an interest in protecting a student’s “unpopular expression,” especially when the expression occurs outside of school, because “America’s public schools are the nurseries of democracy.”
Key Factors that Influenced the Court’s Decision that the School District Violated Levy’s First Amendment Rights
- Levy’s Snapchat post reflects “criticism of the rules of a community of which Levy forms a part.”
- Levy’s posts were outside the scope of school hours from an off-campus location.
- Levy did not specify the school in her posts or target any specific member of the school community with abusive language or profanity.
- Levy conveyed her message through her personal cellphone to a private friend group on Snapchat.
- The school district’s interest in “teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community” is diminished by the fact that Levy’s speech was off-campus in her free time.
- Levy spoke under circumstances where the school did not stand in loco parentis.
- The profanity in Levy’s post was a message of criticism.
- The school district could not demonstrate that it was spearheading any initiative to prevent students from using vulgarity outside of school.
- Levy’s actions did not substantially interfere or disrupt school operations or negatively impact the team morale.
The Court states that: “It might be tempting to dismiss Levy’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Although in many respects this decision is considered a free-speech win, the Court did not announce a bright-line rule that school districts never have a role in disciplining students for off-campus speech. Given that schools can still police off-campus conduct if there is a sufficient nexus to school safety or order, and there is no classic First Amendment value to the objectionable speech, students should be thoughtful about their behavior off campus. Public schools can still regulate conduct that results in bullying, harassment, threats, or significant disruptions, or meets other criteria detailed above, including security breaches.