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:
- 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.
- 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.”
- 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: