Jun 24, 2021
Supreme Court Rules for Cheerleader in Off-Campus Free Speech Case
Schenk Price reported in September on the United States Court of Appeals for the Third Circuit’s 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 junior varsity cheerleading team. When she did not make 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 in the snap). The coaches suspended her from the J.V. team, and the school upheld the decision upon appeal.
B.L. sued the school district in federal court, asserting a violation of her First Amendment rights. The District Court upheld her claim and ordered her reinstated to the team. A majority of the Third Circuit appellate panel not only affirmed the District Court’s decision, but broke new ground by ruling that the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School Dist. – which permits schools to discipline students for otherwise protected speech when it substantially interferes with the work of the school or impinges on the rights of other students—does not apply to off-campus speech. (The Third Circuit did indicate that its decision was not intended to cover substantial disruptions affecting the rights of other students, such as cyberbullying, and left that issue for another day.)
On Wednesday, the United States Supreme Court affirmed the Third Circuit Court’s decision, agreeing that the school’s special interests were not sufficient to overcome B.L.’s interest in free expression. However, the Supreme Court disagreed with the Third Circuit’s reasoning, and clarified that schools are permitted to regulate off-campus student speech under certain circumstances:
Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. 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, including material maintained within school computers.
While the Supreme Court declined to issue a bright-line rule establishing an exhaustive list of what constitutes “off-campus” speech and the circumstances which would permit schools to discipline students for it, the Court did identify “three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech”:
- For off-campus speech, school administrators will rarely stand in the place of students’ parents under the doctrine of in loco parentis. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.”
- Courts must be skeptical of a school’s efforts to regulate off-campus speech because this could result in 24-hour regulation of a student’s speech by the school. Moreover, “[w]hen it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
- The school has an interest in protecting a student’s unpopular expression, especially when it takes place off-campus. “[S]chools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”
In light of all the potential variables, the Supreme Court noted that as a general rule it could say little more than: “Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
Applying these parameters to the specific facts at issue in the case, the Supreme Court stated that: 1) “the school’s interest in teaching good manners [was] not sufficient…to overcome B.L.’s interest in free expression”; 2) it could not find evidence “of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action”; and 3) there was little to suggest a serious decline in the cheerleading team’s morale “to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion.”
While the Supreme Court rejected the Third Circuit Court’s absolute rule that schools are nearly always prohibited from disciplining students for off-campus speech, it made clear that schools should still use caution when deciding whether to do so. Nonetheless, the Court contemplated that the following types of off-campus behaviors might justify school regulation, depending on the specific circumstances: serious or severe bullying; threats aimed at teachers or 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.
We recommend that school districts review their policies and regulations pertaining to off-campus student conduct and discipline. 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.