Last month, the United States Supreme Court held that a school district violated a student’s First Amendment rights when it suspended her from the junior varsity cheerleading squad for off-campus social media activity. While the Supreme Court’s decision continues to allow schools to address off-campus speech when it results in a substantial disruption to school operations, the decision calls into question the enforceability of enhanced conduct rules for students participating in extra-curricular activities.
Mahanoy Area School District v. B. L. by & through Levy, 141 S. Ct. 2038 (2021) stems from a 2017 incident in which a Pennsylvania public high school freshman, B.L., voiced her disappointment in not making the varsity cheerleading squad for the upcoming school year by posting an expletive-laden comment on social media. While at the local student hang-out, the Cocoa Hut, B.L. and a classmate took a selfie, each with a middle finger raised. B.L. posted the photo to Snapchat captioning it: “f— school f— softball f—cheer f– everything.” The ‘snap’ was seen by about 250 contacts in B.L.’s user group, including the daughter of one of the cheerleading coaches.
In turn, the coaches learned of the post and issued B.L. a one-year suspension from the cheerleading team for violation of the written Cheerleading Rules. The rules, developed by the squad’s coaches without input or approval from the school district, stated in part: Please have respect for your school, coaches, teachers, and 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.
After unsuccessfully appealing the suspension to the school board, B.L. filed a lawsuit in federal court. The district court granted an injunction of the suspension, which placed B.L. on the junior varsity team for her sophomore year. B.L. later won at the district court and appellate court levels. In 2020, the Third Circuit (covering Delaware, New Jersey, Pennsylvania, and the Virgin Islands) held that a public school cannot regulate any student speech occurring outside of school-sponsored activities. This was by far the broadest standard set by any federal circuit in the country.
The United State Supreme Court granted review, marking it the first time the Supreme Court would address a public school student’s speech rights since the proliferation of social media. More than 50 years ago, the Supreme Court issued the seminal student speech decision,Tinker v. Des Moines School District, 89 S. Ct. 733 (1969). InTinker, the Court held that the Des Moines School District violated its students’ First Amendment rights when it suspended them for protesting the war in Vietnam by wearing black bands to a student assembly. The Supreme Court held that a student’s speech must “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” in order to be subject to regulation.
Technological advancements in the five decades since theTinker decision have blurred the lines as to when students engage in speech that takes place at or impacts on a school. Additionally, many schools throughout the country are now charged with responsibilities beyond teaching curriculum, including implementing before- and after-school programs, feeding children, and helping with health-related concerns. This past year, the implementation of wide-spread remote learning blurred the lines between school-related and non-school-related activities even further. These developments were not lost on the justices rendering the Mahanoy decision, as Justice Breyer stated at oral argument:
"There are dozens of areas that didn’t used to be thought of as within the purview of the public school. … Now add to that the Internet … not just listening to teachers but also doing homework and also writing papers, sometimes vaguely defined … How do I get a standard out of that? I’m frightened to death of writing a standard."
A few days after oral argument, Chief Justice Roberts assigned the writing of the decision to Justice Breyer.
The Supreme Court reached the same result as the Third Circuit as to whether B.L.’s First Amendment rights were violated, but it rejected the Third Circuit’s broad, bright-line standard. The Mahanoy decision allows school district regulation of off-campus behavior, and it cites the following circumstances in which school district action would be appropriate:
• serious or severe bullying or harassment targeting particular individuals;
• threats aimed at teachers or other students;
• 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 school computer systems.
Beyond those specific examples, the Supreme Court retained a case-by-case approach, in which regulation of speech is appropriate depending upon the circumstances. Chief among the considerations is “a student’s age, the nature of the school’s off-campus activity or the impact upon the school itself.” Accordingly, the Court left standingTinker’s substantial disruption test. In B.L.’s case, the evidence of disruption was limited to a few students who said they were upset by the ‘snap’ for a couple of days. Accordingly, the Supreme Court held that B.L.’s First Amendment rights outweighed the school district’s interest in preserving team morale and teaching students good manners. One is left to wonder whether discipline would have been permissible if the ‘snap’ had targeted a particular student who made the varsity squad.
In Wisconsin, school boards are authorized by state statute to take action when a student’s conduct, whether at school or not, “endangers the property, health or safety of others at school.” Wis. Stat. § 120.13(1)(b). Consistent with the Supreme Court’s decision inB.L. v. Mahanoy, student threats, bullying, and other similar misconduct appropriately remain subject to discipline.
However, school districts should note that student conduct or honor codes that subject students participating in extra-curricular activities to certain behavioral standards are vulnerable to a successful challenge. School districts should review any such codes and policies. Further, school districts with a social media presence allowing for public comment should also review their social media policies to ensure that they are not overly broad and prohibit speech protected by the First Amendment.