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Supreme Court Holds School Regulation of Off-Campus Speech May Violate the First Amendment

Emilie K. Vassar
7/2/21

Kids in school looking at a phone.   On June 23, 2021, the U.S. Supreme Court issued a landmark decision in Mahanoy Area School District v. B.L., solidifying the protection of off-campus freedom of expression for school-age children. In an 8-1 decision, the Court held the First Amendment protects students’ freedom of expression on social media when posted during their own time and off-campus, with only limited exceptions.

Facts and Case History

   In Mahanoy City, Pennsylvania, a high school student was suspended from participating in the school’s cheerleading program for a year after posting a vulgar Snapchat story about not making the varsity cheerleading team. She and her family filed suit against the school, alleging the suspension violated the First Amendment because the student made the post on her own time and off-campus. Mahanoy Area School District argued it had an interest in teaching good manners and the post violated school and team rules. The District Court held the punishment violated the First Amendment because the post did not cause a substantial disruption at school. The Third Circuit affirmed, reasoning the school district did not have a license to regulate off-campus conduct.

U.S. Supreme Court’s Decision

   Like the lower courts, the U.S. Supreme Court held the student’s suspension violated the First Amendment in this instance, although the Supreme Court disagreed with the Third Circuit’s assessment that schools did not have the right to regulate off-campus speech. The Court identified three features of off-campus speech that diminish schools’ license to regulate the expression.

   The Supreme Court’s holding in this case is limited. The Court acknowledged the age of remote learning has changed the understanding of what is or is not considered “on campus,” and it chose to refrain from creating a bright line rule in that respect. The Court also acknowledged that the question of a school’s ability to regulate speech must be a fact-based inquiry, considering factors such as:

Takeaways

   Unfortunately, this decision does not provide substantial clarity for schools moving forward; rather, the Court leaves to schools to consider many factors when determining whether to regulate or punish student expression, particularly when the expression occurs off-campus.

However, the Supreme Court relied heavily on the standard for on-campus speech from Tinker v. Des Moines Ind. Comm. Sch. Dist. – whether the speech caused substantial disruption at the school. While it is far from clear where the line falls regarding off-campus speech, it is clear that, if off-campus speech does not at least meet the “substantial disruption” standard, it should not be regulated by the school. As such, when crafting disciplinary policies addressing student speech off-campus, schools should focus on harmful effects of the speech on the school and student body, such as policies prohibiting cyber-bullying, rather than the nature of the speech itself.

   Should you have any questions regarding how this decision may affect your school’s policies, please contact Emilie K. Vassar.

   Lauren A. Schaffer, a law clerk with Eastman & Smith and a third year law student at the University of Toledo School of Law, contributed to this article. Ms. Schaffer has a degree in inclusive early childhood education from Bowling Green State University.

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   Disclaimer:  The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.