One of the ironies of education law is that a 50-year-old case about the Vietnam War dictates how school administrators can respond to students’ use of TikTok, Snapchat and Instagram. Last week, the U.S. Supreme Court reaffirmed that school administrators must prove that student misuse of social media causes or is likely to cause a material and substantial disruption at school before punishing students, even if the punishment is only a limitation of extracurricular activities. In Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), a student sent profanity-laced messages on Snapchat about the school and her cheer team when the student was off school grounds on the weekend. The Court ruled that Tinker applies to off-campus speech, and advised lower courts to hold schools accountable to prove the disruption they allege student speech may cause. The opinion flatly says judges should be “skeptical” of school discipline imposed for off-campus speech. In addition, the school can likely regulate off-campus speech when related to bullying, harassment, threats, participation in online activities, and breaches of school security, among other situations.
The school violated the student’s right to free speech.
After she failed to make the varsity cheerleading squad, B.L. posted two messages on Snapchat expressing her frustration. These off-campus messages included a picture of B.L. raising her middle finger and some F-bombs against the school and cheer squad. Some of B.L.’s “friends” took a screenshot of the messages and spread it. (Spoiler alert, once online, things never truly disappear) When the cheer sponsor learned of the posts, she suspended B.L. from the cheer squad for the upcoming year. After unsuccessfully seeking to reverse that punishment, the student and her parents sued in federal court. The Supreme Court reaffirmed that the student’s First Amendment rights were violated by the school, but the Court corrected the Third Circuit's application of Tinker.
The student’s off-campus criticism of the school was protected. While the student used vulgarity and risked transmitting her messages to the school by posting them online, her speech was protected under the First Amendment because of when, where, and how she spoke. She criticized the team and school outside of school hours from outside the school. She did not identify the school in her messages or target any member of the school with vulgar or abusive language. The speech was transmitted from a personal cell phone to her private circle of Snapchat friends.
It is possible that the Court would have reached a different conclusion if the student had used the school’s computer, targeted the school or its members, or posted outside a private circle. The Court’s decision was narrowly applied to the facts in B.L.
Additionally, the evidence showed that the student’s speech never disrupted the school except for 5 to 10 minutes of an Algebra class (taught by the cheer sponsor), and a few “upset” students. Despite the school's concern for team morale, there was no evidence that the team morale was affected by the speech. Thus, the school could not discipline the student for her off-campus speech because the speech was considered criticism and never substantially interfered with or disrupted the school’s operations.
The school can regulate off-campus speech under certain circumstances.
The Supreme Court specifically held that Tinker allows schools to regulate off-campus speech under some circumstances. However, the Court left “for future cases to decide where, when, and how.” The Court only went as far as stating that the school’s evidence of disruption was insufficient in this case.
The Court noted that the school’s need to regulate students’ off-campus speech will usually be diminished by several factors. First, most off-campus speech will fall within the parental, rather than the school-related, responsibility. (We’ll give school administrators a second to laugh at the Court’s quaint notion of how involved most parents are in their students’ online lives……) Second, if schools were allowed to regulate all off-campus speech, “doing so may mean the student cannot engage in that kind of speech at all.” Third, the school itself has an interest in protecting a student’s unpopular expression because public schools are the “nurseries of democracy.” Yeah, you read that correctly...you should be delighted that students are F-bombing their teams and coaches online when things don’t go well because, you know, they’re probably thinking about the limits of their freedoms when ranting on social media… (Pauses again for laughter.)
In other words, administrators can likely discipline off-campus speech that satisfies the “material and substantial disruption standard,” but they face a heavy burden to justify the discipline.
Lastly, the Court stated that some circumstances may give schools an increased interest in regulating off-campus speech. The circumstances 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.”
Conclusion
You may have heard us talk about the potential for this case to substantially change the test that schools must meet when curtailing student speech. This opinion doesn’t necessarily do that. It still applied Tinker to the student’s off-campus speech. Schools can still impose consequences for off-campus speech, but only when the speech causes a material and substantial disruption. What we learned in this case is that ten minutes of discussion in a single algebra class and a few upset students was not enough.
The Court did try to whittle away at that authority by (possibly?) increasing the burden of showing disruption. When a school wants to regulate off-campus speech, it has a heavier burden to show that such regulation does not violate the student’s freedom of speech compared to on-campus speech. As pointed out by Justice Alito, “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.” However, schools are likely able to discipline students for off-campus speech if such speech satisfies Tinker (the “material and substantial disruption standard”), or relates to bullying; harassment; threats; 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.
If you have any questions about how this decision affects your operations, your policies, your handbooks, or a specific situation, please reach out to your school lawyer or contact Karen, Steve, Bobby, Coady, Jordan, or Tyler at (402) 804-8000 or ksb@ksbschoollaw.com