Supreme Court Ruling Alert: Regulating Off-Campus Speech

SUMMARY: Tinker Survives: High Court in Mahanoy case concludes that schools may regulate off-campus speech that materially and substantially disrupts school programming but determines that school should not have disciplined student for vulgar off-campus Snapchat post.

This week the U.S. Supreme Court released its decision in Mahanoy Area School District v. B.L., in which the Court confirmed that schools may, under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), regulate student speech that occurs off-campus but that materially and substantially impacts school programming.

This is consistent with the prevailing authority since Tinker was decided and with how school districts across the country have addressed off-campus speech that impacts school programming.

Background of Mahanoy Case 

In Mahanoy, B.L. tried out for but was denied a position on her school’s varsity cheer squad and varsity softball team. They did, however, offer her a spot on the JV cheer team. She went to a local convenience store and, there, on her personal cell phone, posted on Snapchat a picture of herself and a friend, middle fingers raised, with the caption, “F*** school f*** softball f*** cheer f*** everything.”

This post spread among the cheer squad, some of whom were “visibly upset” by the post, and to the cheer coaching staff, and promoted some discussion in an Algebra class. The cheer coaches discussed the matter with the school principal, and they collectively decided that, because of the use of profanity in connection with a school activity, she had violated team and school rules and they promptly suspended her from the JV cheer squad for one year. She apologized for the post, but her suspension remained.

B.L. unsuccessfully appealed that decision to the school district, then she filed a federal lawsuit alleging that her punishment violated her First Amendment right to Free Speech. The district court agreed with B.L. and enjoined the school from enforcing its suspension. The district court reasoned that, under Tinker, the speech had not “materially and substantially disrupted” school programming, and as a result B.L.’s speech was protected.

The school district appealed that decision to the Third Circuit Court of Appeals, which affirmed the district court’s ruling and agreed that there was no evidence of material and substantial disruption of school programming. But the Third Circuit went further, concluding that the school could not regulate B.L.’s speech because it occurred off-campus and not as part of any school-supervised or sanctioned activity.

In other words, because the speech occurred off-campus and not as part of any school activity, Tinker did not apply. This was the first time that a federal appeals court had held that Tinker does not apply to off-campus conduct, and in fact ran contrary to the prevailing application of Tinker across the country: that schools can regulate off-campus speech if it causes a material and substantial disruption to school programming.

The district asked the U.S. Supreme Court to hear the case and reverse the federal appellate court’s ruling in favor of B.L. The Court held oral argument in April of this year.

In the Mahanoy decision, the Supreme Court affirmed the federal appellate court’s ruling but disagreed with its basis. The Court concluded, consistent with the prevailing application of Tinker, that schools can regulate certain types off-campus speech, but that schools’ authority to regulate such speech is greatly diminished when it occurs off school property, outside of school events, and on a student’s own time.

The Court provided a non-exhaustive list of the types of off-campus speech that schools can regulate, which include: “serious or severe bullying or harassment targeting particular individuals, threats aimed at teachers or students, the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation on other online school activities, and breaches of school security devices, including material maintained within school computers.”

The Court, however, reinforced the principal that each case is fact-specific, and a student’s location does not necessarily dictate whether the First Amendment shields certain speech.

As for B.L.’s speech, the Court concluded that it amounted to a distasteful expression of criticism against the school, done outside of the school’s control, and that there was no evidence that her speech substantially disrupted the school environment. As the Court stated, “The alleged disturbance here does not meet Tinker’s demanding standard.”

Moving Forward

The Mahanoy decision supports the longstanding practice of regulating speech occurring off-campus so long as it materially and substantially impacts school programming. Schools must, however, continue to be thoughtful when intervening in response to off-campus speech, and should diligently investigate and analyze how such speech has impacted the school environment. As in the Mahanoy case, certain student speech may be vulgar or distasteful, but it may not rise to the level of materially and substantially disrupting school itself.

The Mahanoy decision does not disturb longstanding precedent that schools may regulate speech that occurs on school grounds or made as part of school programming, such as speech in class, in a school-sponsored event, made as part of a school publication or assignment, on school technology, as part of remote learning, and communications to school email accounts or phones.

Please do not hesitate to contact one of our Education Law attorneys at Caplan & Earnest for more information on this decision or to discuss the impact of this case on your district.