First Amendment

In a highly anticipated ruling, Mahoney Area School District v. B.L, the United States Supreme Court affirmed the Third Circuit Court’s ruling that a school district violated a student’s First Amendment Right to Free Speech. In July 2020, we reported that the Third Circuit Court of Appeals ruled in favor of B.L, a cheerleader, who was suspended from the team for posting a vulgar snapchat when she was off-campus during a weekend.

Notably, the Supreme Court did not provide a “bright line” rule for districts to follow concerning when a student can be punished for off-campus speech. Because of the “advent of computer-based learning,” the Court hesitated to determine precisely which of many school-related, off-campus activities allow a school to regulate student speech. The Court stated, “we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning related activities or the protection of those who make up a school community.”

However the Court outlined “three features of off-campus speech that often, if not always distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” Below are three takeaways from the high court that should help guide school districts when confronted with students’ First Amendment rights to free speech.

The three features that schools must analyze are as follows:

1. In loco parentis? A school, in relation to off-campus speech, will rarely stand in loco parentis. Geographically, off-campus speech will normally fall within the zone of parental, rather than school responsibility.
2. Political or religious speech? Schools must tread carefully when attempting to regulate students’ political or religious speech that occurs outside of school or at a school program or activity. Regarding this type of speech, “the school will have a heavy burden to justify intervention.”
3. Protection of unpopular expression? The high court proclaimed that “America’s public schools are the nurseries of democracy.” Because the free exchange of differing ideas facilitates an informed public opinion, unpopular ideas have a special need for protection.

The Court found that “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. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”

When discussing the particulars of B.L’s case, the Court addressed three of the schools’ arguments that supported its discipline of B.L. First, the Court found that while crude, B.L’s words did not amount to “fighting words,” as she did not identify the school or target a member of the school community. Further, the Court found the school’s interest in anti-vulgarity to be weakened considerably by the “fact that B.L. spoke outside the school on her own time.” Also, the school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.

Second, the Court rejected the school’s argument of disruption within a school-sponsored activity, finding no evidence of substantial disruption or threatened harm to the rights of others that would justify the school’s action. The record showed that there was a 5-10 minute discussion of the matter in an Algebra class, which did not meet the demanding standard of disruption.

Lastly, the school’s argument that the speech impacted team morale was also rejected as there was no evidence of substantial interference or disruption of the school’s efforts to maintain team cohesion.

Perhaps anticipating criticism that the Court would waste its time on a First Amendment analysis of such content, the Court stated that “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

To read the Court’s full opinion, please download the following:

On June 30, 2020, in a precedential decision the Third Circuit Court of Appeals in B.L. v. Mahanoy Area School District, No. 19-1842 (3rd Cir. 2020) found that a school had violated student B.L’s First Amendment rights by suspending her from the JV cheer team due to a picture she posted on snapchat. The picture in question was posted over a weekend and away from school and depicted B.L. and a friend with their middle fingers raised. The picture had the caption “F*$# Cheer”. B.L posted the picture because she was frustrated that she did not make the varsity team. The cheer coaches decided that the “snap” violated team and school rules. The cheerleaders’ rules required cheerleaders to “have respect for [their] school, coaches… [and] other cheerleaders” and “avoid foul language and inappropriate gestures.” The coaches also felt that B.L violated a school rule the required student athletes to “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”

First the Court addressed the issue of whether the snapchat constituted on or off campus speech and noted that the omnipresence of online communication poses challenges for school administrators and courts alike. The Court found that B.L’s snap fell “outside the school context” as it was “created away from campus, over the weekend, without school resources, and she shared it on a social media platform unaffiliated with the school.” Next, the Court analyzed whether the First Amendment allowed the school to punish B.L for her off-campus speech. According to the Court, “obscure lines between permissible and impermissible speech have an independent chilling effect on speech.” The School argued that its actions were justified because of its power “to enforce socially acceptable behavior” by “banning vulgar, lewd, obscene or plainly offensive speech by students.” In response, the Court cited the precedent that it was “unseemly and dangerous” for schools to control students’ free expression off campus by punishing them, and that those concerns “apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extra-curricular activities, which ‘are an important part of an overall educational program.’” Because the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large, the Court held that the school was not justified in punishing B.L.

Addressing the new communicative technologies that now abound, the Court cautioned that though schools may want to seek to suppress speech they consider inappropriate, uncouth, or provocative, such efforts are not permitted “no matter how well-intentioned, without sacrificing precious freedoms that the First Amendment protects.” To assist both school administrators and students, the Court explained that a “test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.” Notably, the Court stated that it is “reserving for another day” the First Amendment implications of off-campus speech that threatens violence or harasses others.

After the February 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, students across the country took to the streets and scheduled school walkouts. Such demonstrations highlight the need to understand students’ First Amendment rights. This discussion provides crucial considerations for school districts in addressing student activism.

Classroom assignments can sometimes create unintended controversy. Download and review this recent case to learn how a high school Spanish class assignment to recite the Mexican Pledge of Allegiance garnered national media attention and led to a lawsuit from a student.

A federal appellate court has ruled that a school cannot expel a student for creating and posting a violent rap  song without showing a substantial disruption or a “true threat.” The failure of the school to present any evidence that the song ever reached campus or otherwise caused the intended “victims” in the song to become fearful for their safety defeated the school’s attempts to justify the expulsion of the student.  Read about this case now to ensure your district’s good intentions do not result in a violation of a student’s constitutional rights.

Hogan Lovells’ new client memorandum on this trial court decision is a must read. Plaintiffs in this case charged that 5 statutes governing teacher employment (tenure, seniority, etc.) violated the state constitution’s guarantee of equal educational opportunity. The trial court found ruled in the plaintiffs’ favor. The court found that the tenure and seniority system imposed a real and appreciable impact on the student’s fundamental right to an education because it allowed grossly ineffective teachers to continue teaching and undermine the ability of a child to succeed. Although the opinion has been criticized in some quarters, Secretary of Education Arnie Duncan has praised the decision. Districts should read this case now to understand that similar challenges may be raised in their state.

In this decision, the U.S. Supreme Court clarified that governmental employees’ speech, pursuant to a subpoena before a jury, is protected by the First Amendment. In this case, a governmental auditor uncovered fraud committed by a state representative. The auditor was subsequently fired after being called to testify against the representative. The governmental entity claimed it was entitled to fire the employee because the testimony was within the scope of his employment. The U.S. Supreme Court summarily rejected that argument. Instead, the Court found that the employed was speaking on a matter of public concern and, therefore, entitled to first amendment protection. Read it now to understand parameters of employee speech rights.

In our August case report, SLRMA reported on the 3rd District decision B.H. ex rel. Hawk v. Easton Area School Dist. wherein the court ruled the school violated the students’ First Amendment Rights for banning and punishing the student for wearing “I ♥ Boobies” bracelets. On December 3, 2013, the school district filed a Writ of Certiorari with the U.S. Supreme Court appealing the decision. In this memo, Hogan Lovells’ attorneys discuss this case, school free speech cases and the potential impact on school’s ability to monitor and manage student speech.

Determining whether a teacher’s public criticism of a principal is protected Free Speech or conduct subject to discipline can be difficult. In this case, a Teacher was transferred to another school after she argued against and ultimately refused to change children’s grades under a policy instituted by the Principal. Once transferred, Teacher sued Principal for the alleged violation of the First Amendment Rights and wrongful termination. Ultimately, the court determined the Principal was not entitled to immunity for these actions because the teacher’s speech implicated a matter of public concern. Read this case now to ensure your district knows the contours of this employment issue.

The Federal Court Appeals in Pennsylvania recently found that a school violated its students’ First Amendment rights by banning a bracelet encircled with the words “I ♥ boobies (Keep a Breast)”. Although the court found that the bracelets were ambiguously lewd, it also found that they commented on a social of political issue. As consequence, the First Amendment prevented the school from taking adverse action against the students for wearing the bracelets to school. Download and read the summary now to learn when your district can, and cannot, ban ambiguously lewd student speech.