In Mahanoy Area Sch. Dist. v. B.L., the United States Supreme Court ruled that a public school violated a high school cheerleader’s First Amendment rights when it disciplined her for a series of weekend Snapchat posts that contained vulgar language about school and cheerleading. The decision places limits on the ability of public schools to restrict some off-campus speech and it makes clear that a school’s authority to restrict such speech is not the same as its authority to restrict speech that occurs in school.
Background of Student Speech in Public Schools
In general, student speech in public schools has less protection than speech by adults in the community at large. That’s because of what the Supreme Court has referred to as the “special characteristics of the school environment,” which include the obligations to teach students socially acceptable behavior and to provide them with a safe educational environment.
As noted in the table below, the Supreme Court has developed specific legal standards that apply to student speech that occurs in the school environment. The primary case is Tinker v. Des Moines, where the Supreme Court ruled that a school could not discipline students for wearing black arm bands to protest the Vietnam War unless it had some reasonable expectation that the expression would substantially disrupt school activities, or impinge upon the rights of others. There was no such finding in the case, so the school could not discipline the students. The other three cases are all essentially exceptions to Tinker, or situations where the substantial disruption standard does not have to be met in order for the school to restrict the speech, as long as other requirements are met (i.e., the speech is lewd, or school sponsored, or involves illegal drug use).
Under these standards, offensive or vulgar speech, which may be protected for adults outside of the school environment, can generally be restricted for students inside of the school environment.
Supreme Court Case
Legal Standard for Public Schools
Tinker v. Des Moines
May restrict student speech if there is a reasonable expectation that it will cause a substantial disruption of, or material interference with, school activities, or that it will impinge on rights of others.
Bethel v. Fraser
May restrict lewd, indecent, vulgar, or plainly offensive speech, even if there is no disruption or impingement of others.
Hazelwood v. Kuhlmeier
May restrict school-sponsored speech if the restriction is reasonably related to legitimate pedagogical concerns.
Morse v. Frederick
May restrict speech that a reasonable person could interpret as promoting illegal drug use. Deference given to school administrators on whether the speech at issue promotes such activity.
These Supreme Court legal standards are all based on situations where the student speech occurred at school or at a school-sponsored event. Lower courts have not been uniform on how to apply these standards to speech that occurred off-campus.
In Mahoney Area Sch. Dist. v. B.L., the lower court ruled that these student speech standards did not apply to the cheerleader’s Snapchat posts because they occurred outside of the school environment. As a result, the lower court ruled that the school violated the student’s First Amendment rights by disciplining the cheerleader. One of the big questions leading up to the Supreme Court’s decision was whether the Court would agree.
What Did the Court Say?
The Supreme Court agreed with the lower court’s conclusion that the school violated the cheerleader’s First Amendment rights, but did not agree with the court’s reasoning that the student speech standards do not apply to off-campus speech. Instead, the Court noted that the “special characteristics” that warranted “leeway” when regulating student speech at school could still exist for some off-campus speech.
The Court noted a number of situations where a school’s interests in restricting off-campus student speech remained significant. These include:
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.
The Court also stated that this list was not exhaustive and noted that with the “advent of computer-based learning,” it was not going to determine “which of many” off-campus activities belong on such a list.
The Court noted three features of off-campus student speech that would “often, even if not always,” diminish the strength of the “unique educational characteristics” that allow schools leeway to restrict speech under the First Amendment:
School officials do not stand in loco parentis (meaning “in the shoes of the parents”) for off-campus speech, whereas they do for on-campus speech as part of providing a safe educational environment and teaching socially acceptable behavior;
If schools were allowed to regulate off-campus student speech in the same manner as on-campus speech, it could eliminate any forum that students have to express certain speech that would otherwise be protected in the community at large; and
Schools should be protecting unpopular expression by students because they are “nurseries of democracy.”
Taking these features into account, the Court found that the school’s interests in this case were not sufficient to overcome the cheerleader’s interest in free expression because the cheerleader’s speech
Was “pure speech” that would receive strong protection under general First Amendment standards that apply to adults;
Occurred outside of school and after school hours when school officials were not acting in loco parentis;
Did not identify the school or target any member of the school community with vulgar or abusive language; and
Was sent through a personal cellphone to a private circle of friends via Snapchat.
The Court noted that the school’s primary interests in this case were in prohibiting students from using vulgar language to criticize a school team or its coaches and in preventing substantial disruptions as a result of such speech. The Court said that the school’s interest in punishing vulgar speech was weakened considerably by the fact that the student spoke outside of school on her own time and the school was not standing in loco parentis. It also found that the facts did not establish a substantial disruption under Tinker, so that standard was not met.
Justice Alito issued a concurring opinion stating that while the First Amendment permits schools to restrict some off-campus student speech, the authority to do so is more limited than it is for on-campus speech because school officials are not acting in loco parentis. The opinion also states that a school’s ability to regulate off-campus speech should depend on the nature of the speech and the circumstances under which it occurs and it provides a spectrum of situations to illustrate where speech can and cannot be regulated by schools.
What Does It All Mean?
Four key points come from the Court’s decision:
A school’s authority to restrict student speech off-campus is not the same as its authority to restrict speech that occurs during school. The vulgar speech by the cheerleader in the case likely could have been restricted under Bethel v. Fraser if it had occurred in school. The court noted that the interests recognized in Bethel v. Fraser in teaching socially acceptable behavior were diminished considerably when the vulgar speech occurs off-campus because school officials are not standing in loco parentis.
The Court did not agree with the lower court’s finding that Tinker does not apply to off-campus speech. Rather, the Court said that the special circumstances that warranted Tinker and the student speech standards could still exist with some off-campus speech. Although the Court did not expressly apply Tinker, it did say that the Tinker substantial disruption standard was not met based on the facts in the case. As a result, lower courts will likely continue to apply Tinker to at least some types of off-campus speech.
The court balanced the school’s interest in restricting the speech against the student’s interest in free expression. In doing so, the Court noted some situations where a school could still have a “significant interest” in regulating off-campus speech and stated that the list was not exhaustive. It also noted three features of off-campus speech that will often diminish a school’s interest in restricting off-campus speech. These situations and features, along with others that may be comparable, will likely be used by lower courts going forward to balance the relevant interests at stake and determine if the off-campus student speech at issue can be restricted.
The court declined to set a broad or general rule for off-campus student speech.
Pulling this all together, it means that lower courts will have to address off-campus speech on a case-by-case basis going forward and assess whether the school’s interests are sufficient enough to outweigh the student’s interest in expressing the speech at issue.
Cases that involve the four situations that the Court noted could give a school a “significant interest” in regulating off-campus speech, and other comparable situations, will likely be areas where schools can discipline students or restrict off-campus speech under the First Amendment. Lower courts will have to determine the role that Tinker plays in that analysis.
It is important to note that the cheerleader’s speech did not involve any of these significant interests, which is one of the primary reasons why the Court found that the school’s interests in regulating the speech were not sufficient to overcome the cheerleader’s interest in free expression.
Since the Court noted that a school’s interest in teaching socially acceptable behavior was diminished for off-campus speech and not sufficient to discipline the student in this case, schools will generally not be able to restrict or punish students for off-campus speech simply because it is vulgar or offensive. Note that this may be different if the vulgar or offensive speech is directed at a school official or at a fellow student as that could trigger one of the “significant interests” noted by the Court. The cheerleader’s speech was not so directed, which is one of the reasons why the Court found that she could not be disciplined under the First Amendment.
Learn More About the 1st Amendment in Schools
The Court’s decision answers some questions and gives schools, parents, and students some guidance on a school’s ability to restrict off-campus speech. It also leaves some questions unanswered that lower courts will have to address going forward.
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