Students Have First Amendment Rights Regarding Off Campus Speech

On June 23, 2021, the U.S. Supreme Court issued its decision in Mahanoy Area School District v. B.L, No. 20-255, which serves as a warning to public school districts about disciplining students for online and off-campus speech.

The facts of this case are no surprise to school district officials across the country, who have been addressing students’ repeated use and misuse of social media for several years.  In Mahanoy, a high school student took to Snapchat when she learned she was not offered a position on the Varsity Cheerleading Squad. Her “Snaps” and “Story” posts included: 1) A photo of the student and her friend at a local convenience store, holding up their middle fingers, with a caption reading: “F___  School F____ Softball F____ Cheer F____ Everything” and 2) A text box featuring the following message: “Love how me and [another student] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?”  At least one of the student’s 250 Snapchat friends who received/saw the content contacted the Cheerleading Coaches to report the student’s statements.  Ultimately, the District’s Coaches, Athletic Director, Principal, Superintendent, and School Board concluded that her behavior violated the team and school rules, so they suspended her from Cheerleading for the upcoming school year.

The student filed a lawsuit against the District alleging that the suspension violated her rights to freedom of speech and expression under the First Amendment to the U.S. Constitution.  The U.S. Supreme Court agreed.

In its decision, the U.S. Supreme Court reviewed its prior First Amendment decisions involving the regulation of speech and expression by public school students, including Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), which explained that public school districts may discipline students for indecent, lewd, and/or vulgar speech uttered during a school assembly on school grounds; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which allowed public school districts to regulate student speech and expression that others may reasonably perceive as “bear[ing] the imprimatur of the school”; Morse v. Frederick, 551 U.S. 393, 409 (2007), which authorized public school districts to discipline students for speech and expression occurring during a class trip, that promotes illegal drug use; and of course, Tinker v. Des Moines Independent Community School District, 393 US 503 (1969), which established that public school students do not “shed their constitutional rights to freedom of speech or expression…at the school house gate” and public school districts may regulate on-campus student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”           

In Mahanoy, the U.S. Supreme Court held that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome [this student’s] interest in free expression in this case.”  The Court explained that Tinker involved on-campus speech and the “substantial disruption” rule set forth in Tinker only applies to certain off-campus speech where the circumstances implicate a public school district’s regulatory interest. 

The Court identified several situations where a public school district’s regulatory interest remains significant, such that a student could be disciplined for speech occurring in that environment.  For example, the Court listed: “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.”  Yet, the Court refused to set forth a 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.”  The Court also hesitated “to determine precisely which of many school-related off-campus activities belong on such a list” given that such a list “might vary, depending upon the student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself.” 

Instead, the Court recognized three features of off-campus student speech or expression that inhibit a public school district’s regulation of such speech or expression under the First Amendment:

1. 1. A school district will rarely stand in loco parentis for students when they are engaged in off-campus speech.
   2. Courts must be skeptical of school districts attempting to regulate students’ speech or expression, which prevents the students from engaging in the speech at all, i.e., 24 hours per day.
   3. A school district has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus.

“Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway,” the Court clarified that “the leeway the First Amendment grants to school in light of their special characteristics is diminished.”  The Court wrote: “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.”

In the Mahanoy case, the Court concluded that the student’s speech and expression on Snapchat included criticism of the cheerleading team, the coaches and the school, which is the kind of speech and expression to which, were she an adult, the First Amendment would provide strong protection.  The Court noted that she shared her Snaps and Stories on Snapchat outside of school hours and outside the school district environment, through her personal cell phone, directed to a group of her friends.  Furthermore, she did not identify the school or target any member of the school community within her messages.

Interestingly, the Majority, Concurring, and Dissenting Opinions did not address the fact that this student was not suspended or expelled from school, but rather, she was suspended from participation on the Cheerleading squad.  This is somewhat perplexing.  In prior cases, federal courts have made a distinction between the rights of students related to participation in public school versus the rights of students related to participation in extracurricular activities.  Indeed, many have suggested that “[t]he prevailing view of the courts is that conditions can be attached to extracurricular participation, because such participation is considered a privilege rather than a right.”[1]  If this is true, then we would have expected the Court to conclude that the District could suspend the student from Cheerleading because of her off-campus speech, but she could not have been suspended from school.  Alternatively, we would have expected the Court to have, at the very least, addressed this distinction in its opinion.  Unfortunately, however, the Court, in Mahanoy, did not include any reference to this distinction with regard to the student’s First Amendment rights.  As a result, it is not clear how this decision impacts public school districts’ authority to regulate and impose discipline for other off-campus student behavior, which does not implicate students’ rights under the First Amendment.

Additionally, the Court did not address whether the rules that the student was accused of violating were constitutionally sound or too vague.  The “Cheerleading Rules” at issue in Mahanoy were as follows:

“Please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures…There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

Many public school districts in Wisconsin (and around the country) have similar rules contained within Board Policies, Student Codes of Conduct, and Athletic/Activities Codes of Conduct.  Regrettably, the Mahanoy decision does not help to clarify whether sweeping changes need to be made in such language, in addition to enforcement.

Even though we are still evaluating the full extent of the impact of this decision, it is advisable for school districts to review Board Policies, Student Codes of Conduct, and Athletic/Activities Codes of Conduct to evaluate whether changes in language and/or application are prudent to ensure compliance with the Court’s decision in Mahanoy.  More important, school districts should consider providing training to building principals, deans of students, athletic directors, and other staff involved in student discipline to ensure that enforcement of such rules does not violate students’ First Amendment rights.  Finally, school districts should proceed with caution when imposing discipline on students for any speech, but especially speech that occurs off-campus, including, but not limited to, speech made through social media platforms.

---

[1] Does a Student’s Property Right to an Education Extend to Participation in Extracurricular Activities? FOCUS ON COLLEGES, UNIVERSITIES, AND SCHOOLS, vol. 5, No. 1, 2011, Fred C. Lunenburg, Sam Houston State University.  See also, Do students have a right to ‘equal extracurricular opportunity’? PHI DELTA KAPPAN: A Professional Journal for Educators, Robert Kim, April 26, 2021.