On June 23, 2021, the United States Supreme Court, in Mahanoy Area School District v. B.L., ruled that while a school district may regulate some speech that occurs off campus, its ability to do has legal limits.
Background: The student, Brandi Levy, a sophomore, and member of a high school cheerleading team—discontent with her status on the junior varsity team — and not the varsity team— posted an image on the social media forum Snapchat which featured an image of her and her friend with the caption “F— school F— softball, f — cheer, f — everything.” While the Snapchat disappeared within twenty-four hours, a screenshot of the image made its way to school officials and resulted in a suspension. Despite Levy's apologies, the suspension stood, and Levy brought suit.
The district court ordered her reinstatement, ruling that the discipline violated the First Amendment because her speech did not cause significant disruption at school. The Third Circuit affirmed her reinstatement, but issued a much broader ruling, that a school district could not discipline a student for conduct that occurred outside of school. The Supreme Court affirmed that the school district's discipline of the cheerleader violated the First Amendment, but on alternative grounds. The majority opinion was written by Justice Breyer. Justices Alito and Gorsuch filed a concurring opinion. Justice Thomas dissented.
Analysis of the Court's Ruling: Justice Breyer, writing for the majority of the Court, reiterated that students “do not shed their constitutional rights to freedom of speech or expression even at the school house gate.” The Court previously outlined three categories of student speech that schools may regulate in certain circumstances: (1) indecent, lewd or vulgar speech uttered during a school assembly and on school grounds; (2) speech uttered during a class trip, that promotes “illegal drug use,” and (3) speech that others may reasonably perceive as bearing the imprimatur of the school, such as that appearing in a school-sponsored newspaper. Moreover, the Supreme Court had said that schools have special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court noted that these special characteristics call for special leeway when schools regulate speech that occurs under its supervision. The Court did not agree with the Third Circuit's holding that these special characteristics that give schools additional license to regulate student speech always disappear when speech occurs off campus, as there are circumstances where the regulatory interests remain significant to off campus circumstances, i.e. bullying, harassment, threats aimed at students or teachers, the failure to follow rules concerning lessons, writing of papers, use of computers or participation in other online school activities and breaches of school security devices, including material maintained within school computers and could potentially involve speech related to extracurricular activities, including team sports.
The Court examined three features of off-campus speech that will make it less likely that schools will have special First Amendment leeway in regulating it. First, a student's off-campus speech will generally be the responsibility of that student's parents. Second, any regulation of off-campus speech combined with regulating on campus speech would include everything that a student utters 24 hours per day. And third, the school has an interest in protecting unpopular speech and ideas by its students, especially when the speech occurs off campus. “America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.' This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People's will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.” Breyer explained that the court left “for future cases to decide where, when, and how these features mean the speaker's off-campus location will make the critical difference” in determining whether speech can be regulated.
In considering the student's speech in this case, the Court concluded that the decision to suspend Levy for her snap still violated the First Amendment. Setting aside the vulgarity, the listener would hear criticism of the team, the coaches and the schools, i.e. the rules of the community of which she forms a part. This criticism did not involve features that would place it outside the First Amendment's ordinary protection. In fact, the Court reasoned that had she been an adult, her speech would normally be protected by the First Amendment. Moreover, she created the Snapchat off school grounds on a weekend, and there is no evidence that it caused the kind of substantial disruption that would justify her suspension.
Practical Considerations: This case reminds us that, while a school district will be given some leeway to curb certain speech or conduct, a careful analysis should be done to ensure that materially disrupts classwork or involves substantial disorder or invasion of the rights of others. In doing this analysis, how and where the speech happens will be relevant. Where speech happens outside school hours, it will be the parents' role to address the conduct, unless it has an impact on classwork or involves substantial disorder or invasion of the rights of others. While we all think of swearing as something schools can curb, depending upon the specific swears used and the context, it can often constitute protected speech.