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By: Rachael Slimmon
Last week the Supreme Court heard oral argument in a case that tests the boundaries of a school’s right to control the off-campus speech of its students. In Mahanoy Area School District v. B.L.,a Pennsylvania public high school student expressed her frustration over not making the varsity cheerleading team by posting a Snapchat picture of herself holding up her middle fingers with a caption that included the phrases “f*** school” and “f*** cheer.” The junior varsity cheerleading coach saw a screen shot of the Snapchat post, and the coach suspended the student from the team for a year.
In its seminal K-12 free speech case Tinker v. Des Moines Independent Community School District, the Supreme Court held that schools cannot regulate speech unless it “materially and substantially” disrupts the school. The Mahanoy case now presents the question of whether Tinker extends to schools regulating speech that occurs outside of school.
The Internet, social media, and smartphones mean that off-campus speech can affect students at school, which makes this issue more complex than Tinker was over 50 years ago. At oral argument on Mahanoy, the Justices were heavily focused on the issue of modern technology and expressed skepticism that a geographical boundary between school and non-school locations would permit schools to effectively handle problems such as cyberbullying, threats of violence, and harassment. Justices also expressed concern over whether the discipline meted out to the student was excessive.
The big question is whether the Court will issue a broad or narrow ruling. The Justices’ comments during oral argument forecasted a narrower ruling, as the Justices seemed uncomfortable with the notion of a broad opinion. Justice Alito was adamant that “there has to be a clear rule” to issue a broad opinion and regulate speech outside schools, and no such clear rules were proposed. Justice Breyer said he was “frightened to death of writing a standard” and Justice Kavanaugh agreed that the Court “shouldn’t write a treatise here.”
Most of the Justices suggested that a narrow ruling tailored to the facts of this case would be appropriate. Justice Kavanaugh proposed a ruling that the First Amendment does not bar school discipline for off-campus speech and remanding the case to the Third Circuit. Justice Alito suggested that the Court need not determine if Tinker applies outside of school because the discipline was not appropriate in this case. And, Justices Breyer and Sotomayor suggested that the speech in this case did not cause material and substantial disruption to the school, which would invalidate the school’s authority to impose discipline at all.
The Court’s ruling is expected in the next several weeks. In the meantime, school districts should remain aware that the issue of disciplining students for off-campus speech that affects the school environment is an evolving legal issue that presents significant risks.
Freeman Mathis & Gary’s Education Law Practice Team assists school districts with analyzing student discipline policies and procedures. For more information about this topic, contact Rachael Slimmon or Candice Jackson.