SCOTUS Gets It Right In ‘Mahanoy’ With Measured Response To Student Speech – Government, Public Sector – United States – Mondaq News Alerts

In April, the United States Supreme Court heard argument in acase that could have changed the school law landscape. The issuebefore the court was whether the Mahanoy Area School District inPennsylvania had violated the First Amendment rights of a studentwhen it suspended her from the cheerleading team for vulgaritiesshe posted on Snapchat after she did not make the varsity squad.Would the court affirm the Third Circuit and provide even greaterprotection to a students' First Amendment right to speak orwould it give more power to the school to regulate a student'sspeech when not on campus?

The headlines blared last week that the court ruled in favor ofthe student, which it did. But savvy school administrators shouldknow that school authorities dodged a bullet here, and they shouldbe grateful that the court rejected the reasoning of the ThirdCircuit in this case.

B.L. had labored in the obscurity of the JV squad for herfreshman year, and she was hopeful that she would move up to thevarsity cheerleading squad with the new season. When she heard thenews that she did not make the varsity squad, she wasdisappointedso much so that she and a friend shared herdisappointment with the world by posting two pictures on Snapchat,including one with middle fingers raised with the caption,"Fuck school fuck softball fuck cheer fuck everything."When one of her teammates forwarded that Snapchat post to thecheerleading coach, B.L was suspended from cheerleading for thatentire season, notwithstanding an apology for her post.

Her parents sued, claiming that her posts were speech protectedby the First Amendment, and the district court agreed. The schooldistrict appealed, and the Third Circuit affirmed. But in so doing,a divided Third Circuit announced a broad new rule, to the effectthat school officials have no authority to discipline students foroff-campus speech, including the posts in question.

By contrast, other appellate courts, including the SecondCircuit, have ruled that school officials do have such authority todiscipline students for off-campus speech.InMahanoy,the United States Supreme Courtresolved the conflict, holding that school officials do haveauthority to discipline students for their off-campus speech inappropriate cases. However, the court limited that authority tocompelling situations, and it ruled that the discipline of B.L. forher vulgarity exceeded that authority and violated her FirstAmendment rights, as explained below.

For more than fifty years, we have been guided by thecourt's seminal decision,Tinker v. Des MoinesIndependent School District(U.S. 1969). For those of uswho practice in the First Amendment arena or are children of thesixties, we will recall the court held that school officials hadviolated the First Amendment rights of Mary Beth Tinker, herbrother and a friend by suspending them from school for wearingblack armbands to protest the war in Vietnam (in violation ofanad hocrule against wearing such armbandshurriedly adopted in anticipation of their protest). In so ruling,Justice Fortas famously said on behalf of the court, "It canhardly be argued that either students or teachers shed theirconstitutional rights to freedom of speech or expression at theschoolhouse gate." Those rights, however, are subject tolimits, and the court went on inTinkerto layout the framework that still applies today: "conduct by thestudent, in class or out of it, which for any reason whether itstems from time, place, or type of behavior materiallydisrupts classwork or involves substantial disorder or invasion ofthe rights of others is, of course, not immunized by theconstitutional guarantee of freedom of speech."

In theMahanoy Area School District case,the district court rejected the school district's claim thatschool officials can regulate off-campus vulgarityunderBethel School District v. Fraser (U.S.1986), and it applied theTinkertest. Findingthat her vulgar post did not cause substantial interference withthe educational process, the court ruled in favor of B.L.

The Third Circuit, however, went a step further by holding thatthe authority of school officials to regulate student speechunderTinkerdoes not extend to off-campusspeech: "We hold today thatTinkerdoes notapply to off-campus speech that is, speech that is outsideschool-owned, -operated, or -supervised channels and that is notreasonably interpreted as bearing the school'simprimatur." That decision, however, was not unanimous. JudgeAmbro dissented from the holding on the basis of judicialrestraint, explaining that the court should not announce a broadnew rule when it was not necessary, given that the vulgar postscaused no disruption at all. He was correct.

This broad new rule was deeply concerning, and we applaud theUnited States Supreme Court's rejection of it. To be sure, thecourt affirmed the significant protection students have under theFirst Amendment, and it laid out three factors militating in favorof protecting off-campus speech: (1) school officials do notnormally standin loco parentiswith the respectto off-campus speech, noting that "off-campus speech willnormally fall within the zone of parental, rather thanschool-related, responsibility;" (2) assertion of schoolauthority in such cases could result in 24/7 oversight of studentspeech that impinges on their First Amendment rights, and (3)"the school itself has an interest in protecting astudent's unpopular expression, especially when the expressiontakes place off campus," an important lesson that schoolsshould convey.

Significantly, however, and in light of the realities that mostmodern day discourse takes place through internet communications,the court also recognized that some off-campus speech is harmfuland should be regulated: "The school's regulatoryinterests remain significant in some off-campus circumstances. . .. . These include serious or severe bullying or harassmenttargeting particular individuals; threats aimed at teachers orother students; the failure to follow rules concerning lessons, thewriting of papers, the use of computers, or participation in otheronline school activities; and breaches of school security devices,including material maintained within school computers." (NoteP.A. 19-166, effective 7/1/21, raises the bar on what is"bullying" and conforms to the court's carve-out fromprotected speech by defining "bullying" as an act that isdirect or indirect and severe, persistent or pervasive, which (A)causes physical or emotional harm to an individual, (B) places anindividual in reasonable fear of physical or emotional harm, or (C)infringes on the rights or opportunities of an individual atschool.") Of course, what is "severe" will likelyprovide the next cottage industry of school litigation. As JusticeAlito noted in his concurring opinion, "Bullying and severeharassment are serious (and age-old) problems, but these conceptsare not easy to define with the precision required for a regulationof speech."

But for now, the court has appropriately clarifiedtheTinkertest as it applies to off-campusspeech, outlining the few circumstances that would authorize schoolregulation of such speech. Mere "disruption" has neverbeen the standard; from its inception,theTinkerrule has limited the rights of schoolofficials to regulate student speech to situations when theyreasonably forecast that student speech will"materially[disrupt] classworkor[involve]substantialdisorder."(Emphasis added).

TheMahanoy Area School Districtcase strikesan appropriate balance between the competing concerns for studentfree speech rights on the one hand, and for a safe and healthfulschool environment for all students on the other. Importantly, thedecision serves as a reminder to school officials that they mayregulate student speech only in compelling circumstances.

Originally published by the Connecticut Law Tribune

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SCOTUS Gets It Right In 'Mahanoy' With Measured Response To Student Speech - Government, Public Sector - United States - Mondaq News Alerts