Prepared by the NJPSA Legal Department and LEGAL ONE
Does the United States Supreme Court’s decision in Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), change the way school administrators should handle decisions related to off-campus speech that may affect the school community? No, although the decision clarifies the broad leeway provided to students under the First Amendment to express strong and sometimes critical views of school officials, where such expression occurs off school grounds.
In an 8-1 decision that was narrowly tailored to the facts of the case, the United States Supreme Court ruled against a Pennsylvania School District for disciplining a student for her off-campus remarks. The decision leaves intact the general notion that schools have limited authority over off-campus student speech.
The facts in the case were straightforward. The student (B.L.) was a member of the junior varsity cheerleading team. When she failed to make the varsity team or get her desired position on the softball team, the student 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.” A student took pictures of B.L.’s post and shared it with other members of the cheerleading squad, who were said to be visibly upset about the post. The matter was then brought to the attention of the coaches, who, after discussing it with the principal, decided to suspend B.L. from the junior varsity cheerleading squad for the upcoming year.
B.L. then sued in Federal District Court claiming that disciplining her for her off-campus remarks violated her First Amendment right of free speech. B.L. was successful in her case at both the trial and appellate levels.
The Federal District Court found in favor of B.L. It cited Tinker v. Des Moines, the seminal 1969 case defining the parameters of student speech, for the proposition that for a school to be able circumscribe student speech it had to show substantial disruption to the school environment. The District Court found that B.L.’s speech had not caused substantial disruption at the school and therefore the school’s discipline violated B.L.’s First Amendment rights.
On appeal the Third Circuit Court of Appeals affirmed the District Court’s ruling, while announcing a different rationale for the decision, indicating that the Tinker substantial disruption standard generally should not be applied to student speech that is off school grounds, even when the speech may cause substantial disruption, unless the speech is threatening or harassing.
The Mahanoy decision marks the first time the U.S. Supreme Court has addressed the authority of school officials to address off-campus student speech. Since Tinker, the Court, while reiterating that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” have held that the First Amendment right of free speech while in school or at school sponsored functions must be applied “in light of the special characteristics of the school environment.” This has meant that schools are within their authority to regulate (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds, (2) speech, uttered during a class trip, that promotes “illegal drug use,” and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper.
In Mahanoy, the Court indicated that generally, if schools have authority to address student speech off school grounds, that authority will need to involve speech that substantially interferes with or disrupts the school environment. While not offering a bright line rule or exhaustive list, the Court indicated that this may 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.
But, because of the advent of computer based learning, much of it off-campus, the Court refrained from providing a general rule or standard defining a school’s regulatory authority over off-campus speech. What it did say is that when students are off-campus and on their own time, districts rarely operate in “loco parentis”—in the place of parents—and when they do not, it is the parents, rather than the schools, that should generally be responsible for imposing discipline. As a result, courts need to be more skeptical when schools seek to regulate off-campus speech. Moreover, because “public schools are the nurseries of democracy” and “our representative democracy” is dependent on the protections afforded to the “marketplace of ideas,” the Court said that schools have an interest in protecting unpopular expression, especially expression occurring off-campus.
Here, putting aside the vulgar language used, what B.L. expressed was criticism of the team, of the coaches and the school, none of which the Court said was outside of the First Amendment’s ordinary protections. “To the contrary,” the Court said, “B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”
The factors which led to the Court’s decision included the following:
1 B.L. did not identify the school to which she was referring.
- She did not target any specific individual.
- She transmitted her speech through her personal cellphone to her private circle of Snapchat friends.
- She did not threaten anyone.
That B.L.’s language was deemed inappropriate by school officials, simply was not enough of a reason to justify the school’s reaction, given its off-campus setting. That the school contended that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity, also was an insufficient reason for the school to impose discipline in as much as there was no evidence of disruption. In this regard, when one of B. L.’s coaches was asked directly if she had “any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking . . . about it,” she responded simply, “No.” As for the impact B.L.’s post had on team morale, here too the Court found scant evidence to suggest any “serious decline in team morale to the point where it would create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion.”
In this case, because the speech in question caused no substantial interference in the school, was not lewd or obscene (which requires more than a mere curse word), and did not constitute “fighting words”, the Court said that it was protected by the First Amendment. In its concluding remarks, the Court discussed a bedrock First Amendment principle that appears to have guided the decision, which is worth repeating: “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Common Questions for NJ Schools Arising from this Decision
When can a school district discipline students for off-campus speech?
The Supreme Court decision effectively leaves intact existing New Jersey regulations governing when and how schools can address conduct away from school grounds. Specifically, N.J.A.C. 6A:16-7.5 provides that in order to impose discipline for student speech or other conduct away from school grounds, schools must:
- Have a code of student conduct that indicates such behavior may be subject to discipline;
- Show that the discipline is reasonably necessary to protect the physical or emotional safety, security and well-being of students, staff or school grounds; and
- Show that the conduct in question materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.
The Supreme Court noted that “the school’s regulatory interests remain significant in some off-campus circumstances” and provided some examples of when a school may be able to regulate off campus speech, including:
- Severe bullying or harassment targeting particular individuals
- Threats aimed at teachers or students
- Failure to follow School District rules re:
- Writing Papers
- Use of Computers
- Participation in other school activities
- Breaches of school security devices including material maintained within school computers
How substantial of an interference with the school environment must the off-campus speech be to warrant student discipline?
The court did not offer a general rule. Each case will have to be decided on its own merits. But the Court did conclude that a 5-to-10-minute discussion about the incident during class for a couple of days, and a general feeling of “upset” voiced by members of the cheerleading squad did not rise to the level of a “substantial disruption” as outlined in the Tinker case.
If there is a confirmed HIB for off-campus behavior, does this decision nullify the school district’s ability to discipline for the behavior/speech?
No. One of the elements necessary for a confirmed finding of HIB in New Jersey, is that a substantial disruption (actual or perceived physical or mental harm; embarrassment; and/or hostile educational environment) occurred as a result of whatever was said or done. Accordingly, if a school district determines that a substantial disruption, as defined by NJ’s HIB law has occurred, then it has the authority to act protect the overall school environment.
What lesson should be learned from this case?
School administrators must base their actions on the facts of a particular matter, and not their emotions, and before taking any action, be deliberate and make sure that you can marshal the evidence to support your decision.