Supreme Court Will Consider if Schools Can Punish Students for Off-Campus Speech

As social media has become intertwined with the way we all live our lives, the ability to communicate easily plus communication being memorialized has led to an increase in students being charged with violations of their school’s code of conduct. While some of this behavior does take place on school grounds or school sponsored events, much of it takes place far removed from the school they attend.  

I have represented an increasing number of students who have run afoul of school officials due to electronic communications. From making public posts on Instagram or Snapchat to closed text conversations with a small group of friends. School officials have the ability to bring charges against a student when they feel the actions of that student have “materially and substantially” disrupted schoolwork and discipline, regardless of the time and place of the communication. 

But that all may change now that the Supreme Court on January 8 decided to hear a case raising the issue of whether a Pennsylvania public school district can discipline students for their off-campus speech. 

In taking the appeal from the school district in Mahanoy Area School District v. B.L., the high court will consider the case of a tenth-grade junior varsity cheerleader who in 2017, after failing to make the varsity squad, posted a message on Snapchat which featured use of a profane gesture and made liberal use of the F-word, applying it to “school,” “softball,” “cheer,” and “everything.” 

The Snapchat message, which went to 250 students, was not sent from the school’s property, was not transmitted on a school day, and was not part of a school program or activity. The school disciplined the student, suspending her from cheerleading for a year, citing school discipline rules, which forbade “disrespect” and barred crude speech and gestures, or posting online “negative information” about cheerleading. 

A school district’s authority to limit students’ First Amendment rights is at the center of the case. The leading Supreme Court precedent is Tinker v. Des Moines Independent Community School District (1969), which by a 7-2 margin upheld students wearing black armbands to protest the Vietnam War. It held that public schools can only regulate student speech that would “materially and substantially” disrupt schoolwork and discipline.

While five other federal courts of appeal and the Pennsylvania Supreme Court had held that, despite Tinker, schools can discipline students for their off-campus speech, both a federal district court and a majority of a three-judge panel of the Philadelphia-based Third Circuit ruled otherwise in this case. (The American Civil Liberties Union participated in both cases, defending the student.) 

The Third Circuit’s decision was the first federal appellate decision to rule Tinker did not give schools authority to regulate students’ off-campus speech and expression. While Tinker created a narrow exception allowing school authorities to act against disruptive speech or expression (which in my experience the school districts have interpreted liberally), the Third Circuit disallowed school district discipline of the disappointed cheerleader for speech that was off-campus.

The key factor establishing the speech as off-campus was not the location of the speech, but instead the extent to which a school district acted to “control or sponsor” the forum or the speech itself. As Tinker had earlier observed, those factors could make it appear public educators had given their imprimatur to student speech outside a school’s brick-and-mortar boundaries. But in the cheerleader’s case, the Third Circuit held, the connection of the speech with the school environment was not substantial enough to authorize punishment of the student.

In arguing for Supreme Court review, the school district pointed to the growing importance of social media speech and urged the Court to provide guidance for the nation’s educational administrators on what their authority and duties might be in that area.

I am looking forward to seeing how this case is decided and I will follow up with another post when it is.

About the Author

limmerlawScott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. He also represents students nationwide when they are charged with violations of their school’s code of conduct.

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