Sep 1, 2020

Is Pupil Off-Campus Speech Limitless?

By Marc H. Zitomer, Esq. and Christopher J. Sedefian, Esq.

The United States Court of Appeals for the Third Circuit (“Circuit Court”), which is one of the federal appeals courts directly below the U.S. Supreme Court, recently issued its decision in B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020). The case involved a student (B.L.) who was on the J.V. cheerleading team. After she was not selected for the varsity team, she posted a photo of herself and her friend on Snapchat which was taken on the weekend and off school grounds, with their middle fingers raised and containing the following caption: “F**k school f**k softball f**k cheer f**k everything” (the words were not censored.). The coaches suspended her from the J.V. team, and the school upheld the decision upon appeal.


B.L. sued the School District (“District”) in federal court, asserting a violation of her First Amendment rights. The lower court granted a decision in favor of B.L., finding that she had not waived her free speech rights by agreeing to the team’s rules and that her suspension violated her First Amendment rights, even though extracurricular participation is a privilege and not a right. The Court determined that her “snap” was not subject to regulation because it was off-campus speech. Finally, because it did not cause any actual or foreseeable substantial disruption of the school environment, she was not subject to discipline under Tinker v. Des Moines Independent Community School District (a U.S. Supreme Court decision holding that a school is permitted to regulate speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of school”). The Court awarded nominal damages to B.L. and required the District to expunge her disciplinary record.


The District appealed the decision to the Third Circuit Court of Appeals. The Circuit Court first determined that B.L’s snap constituted “off-campus” speech because it was created away from campus, over the weekend, without school resources, and she shared it on a social media platform that was unaffiliated with the school. B.L.’s mention of the school and the fact that school students and officials saw the snap was not enough to bring it within the scope of “on-campus” speech.


The District argued to the Circuit Court that it had the power “to enforce socially unacceptable behavior” by banning “vulgar, lewd, obscene, or plainly offensive” speech by students. In doing so, the District relied on a U.S. Supreme Court Decision, Bethel School District No. 403 v. Fraser, which held that vulgar or offensive speech by students receives no First Amendment protection in schools. The Third Circuit clarified that Fraser was inapplicable because it does not apply to off-campus speech. The District contended that Fraser should apply to offcampus speech where the speech or punishment involves an extracurricular activity, but the Circuit Court rejected this contention.


The District also argued that under Tinker, B.L.’s snap was likely to substantially disrupt the cheerleading program. In other words, because the snap was directly critical of the program, and would therefore cause disruption among the students and coaches, the District should be permitted to take action. Crucially, in affirming the District Court’s decision, the Circuit Court held that Tinker does not apply to off-campus speech. In reaching this conclusion, the Circuit Court looked at the different ways in which other federal appeals courts have applied Tinker to school matters involving off-campus speech, which generally consisted of three different approaches: 1) where it was reasonably foreseeable that a student’s off-campus speech would reach the school environment; 2) where there is a sufficient “nexus” to the school’s “pedagogical interests,” and 3) without articulating a governing test or standard. The Circuit Court determined that those tests have generally resulted in too broad of an application of Tinker’s narrow exception. The Court observed that recent technological advances make it likely that student speech on the internet often reaches fellow students and school officials.


The Court ultimately concluded that, “Tinker does not apply to off-campus speech – that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” Simply put, the decision limits Tinker’s application to on-campus speech. The Court expressed its belief that this standard will provide needed clarity for students and school officials.


New Jersey’s HIB (Harassment, Intimidation and Bullying) law provides that schools must address incidents that occur off school grounds when they substantially disrupt or interfere with the orderly operation of the school or the rights of other students. Pursuant to B.L., the Third Circuit has ruled that a “substantial disruption” is not sufficient grounds for a school to discipline a student for off-campus speech. However, the B.L. opinion offered no position on the First Amendment implications regarding the power of schools to discipline students for off-campus speech that threatens violence or the harassment of particular students or teachers. The Court stated that such situations would “raise different concerns and require consideration of other lines of First Amendment law.” Therefore, the Third Circuit did not intend for its ruling to apply to “substantial disruptions” as they pertain to the rights of other students. Accordingly, off-campus conduct (including electronic communications) will still constitute an act of HIB where it is reasonably perceived as being motivated by any actual or perceived characteristic, and where it substantially disrupts or interferes with the rights of other students.


We recommend that school districts review their policies and regulations pertaining to offcampus student conduct and discipline. As set forth in B.L., New Jersey school districts are no longer permitted to discipline students for off-campus speech solely because their conduct causes a substantial disruption to the orderly operation of the school. For more information on this Legal Alert or related issues, please contact the education law attorneys at Schenck Price.


DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.