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Tinker2.0: U.S. Supreme Court Issues Landmark Decision on Student Free Speech

By Lee Green, J.D. on September 08, 2021 hst Print

Mahanoy Area School District v. B.L.

On June 23, 2021, the U.S. Supreme Court issued its first ruling addressing the authority of a public school to punish a student or student- athlete for online speech, holding in an 8-1 decision that the First Amendment free speech rights of B.L., a rising sophomore cheerleader at Mahanoy Area High School in Pennsylvania, were violated when she was dismissed from the squad for her off-campus post on Snapchat of a picture of herself and a friend at the Cocoa Hut, a convenience store, with middle fingers raised and the photo captioned “f*** school, f*** softball, f*** cheer, f*** everything,” followed by a second post expressing her frustration with having been cut from the varsity cheer team and relegated to the J.V. for the upcoming year.

Since the launch of MySpace in 2003, Facebook in 2004, Twitter in 2006, Snapchat in 2011, Instagram in 2012, and TikTok in 2017, along with their numerous online progeny, schools and athletics programs have been struggling with the question of the extent to which they can legally – in accordance with the constitutional mandates of the First Amendment – impose sanctions for postings deemed inappropriate or in violation of written codes of conduct. The key modern challenge for schools attempting to develop and enforce social media strategies has been the lack of clear legal guidelines regarding school authority to restrict off-campus student speech that takes place via new technologies.

Student Free Speech Precedents

From 2011 to 2020, nine lawsuits involving off-campus, online communications by students were decided by U.S. Courts of Appeal in six separate circuits, with three rulings in favor of students and six in favor of schools. All nine of the cases – Doninger v. Niehoff (2nd Cir.), J.S. v. Blue Mountain Schools, Layshock v. Hermitage School District, and B.L. v. Mahanoy Area School District (3rd Cir.), Kowalski v. Berkeley County Schools (4th Cir.), Bell v. Itawamba Schools and M.L. v. San Benito Independent Consolidated School District (5th Cir.), D.J.M. v. Hannibal Public School District (8th Cir.), and Wynar v. Douglas County Schools (9th Cir.) – relied on the legal standards set forth in four landmark U.S. Supreme Court student-free-speech cases pre-dating the Mahanoy decision.

The first, Tinker v. Des Moines ISD (1969), was a dispute involving students who wore black armbands to school to protest the Vietnam War, with the Supreme Court stating in its written opinion that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate” and that schools have authority to limit student speech only when it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” an exacting standard that the Supreme Court concluded did not apply to the highly controversial, yet passive and non-substantially-disruptive actions of the students wearing the armbands. School authority over student speech was later extended by the Court in Bethel School District v. Fraser (1986) to on-campus – but not off-campus – use of vulgar, lewd, or profane language, in Hazelwood School District v. Kuhlmeier (1988) to curricular speech such as a school newspaper, and in Morse v. Frederick (2007) to advocacy of violation of a school anti- drug policy.

These four landmark decisions established the legal standards that were used in the nine above-referenced federal courts of appeal cases to resolve free speech challenges to punishments imposed on students for off-campus social media posts, however those legal principles were difficult to apply in the context of modern technologies, with each of the nine rulings reflecting the idiomatic phrase “attempting to squeeze a square peg into a round hole” and the appellate courts struggling with the application of the concept of “substantial disruption” from Tinker, the delineation between “on campus” and “off campus” from Bethel, the boundaries of “curriculum” from Hazelwood, and the reach of “policy” from Morse.

With the use of social media now ubiquitous among students and student-athletes, school administrators and athletics personnel increasingly are challenged by the issue as to whether they have constitutional authority to impose punishment for social media postings such as rants by dissatisfied athletes, complaints about the competence of coaches, petitions advocating the firing of athletics personnel, harangues critical of classmates or teammates, tirades stoking the rivalry with another school before a big game, diatribes that might be interpreted by readers as threats against members of the school community, and rhetoric advocating student political action, such as calls for national anthem protests on social justice issues, commentaries on gun violence, statements supporting gun control as it relates to school shootings, and other impassioned expressions of opinion on topics such as race relations, climate change, immigration policies, women’s rights, gender equity in sports programs, school policies addressing sexual harassment and sexual assault, equal pay discrimination against female professional athletes, and viewpoints regarding the rights of LGBTQ students, all of which have been the subjects of free speech lawsuits by student- athletes in lower federal courts challenging punishments imposed by schools.

In Mahanoy, in October of 2017, a U.S. District Court issued a temporary restraining order (TRO) reinstating B.L. to the J.V. cheer team pending a full resolution of the case. In March of 2019, the same District Court issued a summary judgment in favor of B.L., concluding that based on Tinker and Bethel, because a substantial disruption had not occurred and the Snapchat postings took place off-campus, B.L.’s free speech rights had been violated. In July of 2020, the U.S. 3rd Circuit Court of Appeals upheld the lower court’s decision granting summary judgment and made permanent the TRO restoring B.L. to the J.V. cheer team.

On January 8, 2021, the U.S. Supreme Court granted certiorari and agreed to hear an appeal of the 3rd Circuit’s decision in order to specifically address the question of school authority over off-campus social media postings by students or student-athletes and to clarify the legal standards that should be used nationwide by schools and personnel to guide their development and implementation of social media policies. Oral arguments were conducted on April 28, 2021, via an audioconference which is available for listening at www.oyez.org. All nine justices asked multiple questions during the extended, two-hour session and their inquiries and comments provide an interesting perspective regarding the viewpoint of the Court on issues of student free speech and on the role of high school sports in modern America. The high court’s decision was announced on June 23, 2021, one week before the end of its 2020-21 term.

Tinker2.0: The Mahanoy Holding

The following is excerpted from the U.S. Supreme Court’s written opinion. The 42-page, full-text decision, including the concurring opinion by Justice Alito and the dissenting opinion by Justice Thomas, is available here.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH and BARRETT, J.J. joined. ALITO, J., filed a concurring opinion, in which GORSUCH, J., joined. THOMAS, J., filed a dissenting opinion.

Held: 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 B.L.’s interest in free expression in this case.

(a) In Tinker, we indicated that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests 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.

(b) But three features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for 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, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

(c) The school violated B.L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad.

Concurring Opinion

Justices Alito and Gorsuch agreed with the conclusion that B.L.’s free speech rights had been violated, but expressed in the concurrence authored by Alito a more deferential viewpoint regarding the authority of school officials to discipline students for off-campus speech, stating “there are more than 90,000 public schools in this country and more than 13,000 separate school districts. The overwhelming majority of school administrators, teachers, and coaches are men and women who are deeply dedicated to the best interests of their students, but it is predictable that there will be occasions when some will get carried away, as did the school officials in the case at hand. 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.”

Dissenting Opinion

Justice Thomas disagreed with the decision that B.L.’s free speech rights had been violated, citing case examples of 150 years of judicial deference to the authority of schools over the actions of students both on-campus and off-campus, emphasizing his viewpoint on the extensive power of schools to punish students by stating “… the majority posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent.”

Recommendations Based on Tinker 2.0

When developing and implementing social media policies, school administrators and athletics personnel should devise strategies that comport with the three rationales set forth by the Supreme Court in support of its Mahanoy holding:

  • Rationale #1: Although school personnel are generally authorized to act in loco parentis (in the place of parents) when students are physically on-campus or engaged in school activities constituting the equivalent of being on-campus (e.g. on the bus en route to an event, at a place of lodging during an event, or at the site of the event), school officials have extremely limited power when students are truly off-campus, at which times their parents/guardians are exclusively empowered to impose disciplinary measures, including ones for inappropriate social media posts.
  • Rationale #2: If school personnel were legally empowered to regulate all student speech both on-campus and off-campus, the institution would in effect have 24-7, complete and unfettered control over the student right of expression, explicitly considered by the Supreme Court in its Mahanoy holding to be excessive and therefore in violation of the First Amendment.
  • Rationale #3: An important component of the mission of America’s schools is to prepare students to participate in the political life of the nation, with educational institutions functioning in the Court’s words as “nurseries of democracy,” by providing students with the latitude to become active in the civic “marketplace of ideas” (posited by Justice Oliver Wendell Holmes Jr. in a 1919 Supreme Court decision). Schools should avoid enacting policies that would limit or censor off-campus student political speech.

However, when creating social media policies, administrators and athletics personnel should also take note of the “special characteristics” explicitly set forth by the Court in its Mahanoy holding – the circumstances in which schools will be allowed to regulate off-campus expression – and when attempting to regulate such speech, officials should “paper the trail” by thoroughly documenting the existence of the special situation legally justifying school control over off-campus student communications:

  • Schools may regulate off-campus speech resulting in a substantial disruption of the educational or athletics environment. But simply because the speech in question is controversial or in opposition to the viewpoint of some members of the school or team or community, school personnel cannot argue that the requirement of substantial disruption has been satisfied. The threshold for “substantial” is an extremely high bar that must be cleared by conclusive proof via solid documentation from the school in order for the regulation of speech to survive judicial scrutiny.
  • Schools may regulate off-campus cyber speech constituting serious or severe bullying, where the off-campus posts are targeted towards intense harassment of other students or school personnel, but not for merely mild criticism or parody of those third parties.
  • Schools may regulate off-campus posts constituting threats against school officials and students, especially where the communication is a “true threat,” defined by the Court in previous rulings as one that a reasonable reader would interpret as a genuine expression of intent to harm someone (e.g. inferences in a post that the speaker is planning to commit a school shooting).
  • Schools may regulate off-campus electronic communications made using school computers or school software, an exception effectively defining the use of school resources as the equivalent of the student conduct having occurred on-campus.
  • Schools may regulate speech occurring during online school activities, such as those that became commonplace during the pandemic with students physically off-campus, but taking their classes using various online platforms such as Zoom, Moodle, Blackboard, Teams, or similar media, again an exception in essence defining the activity as having taken place on-campus.
  • Schools may regulate off-campus speech related to academic integrity issues, characterized by the Court as the failure to follow rules concerning lessons and the writing of papers, actions likely manifested through misconduct such as using social media to cheat, plagiarize, or violate research protocols.
  • Schools may regulate off-campus speech involving breaches of school security devices, actions most likely to be manifested in attempts to hack into school computers in an attempt to engage in some form of academic malfeasance.

Schools, administrators, and coaches should avoid attempting to regulate off-campus, purely political student speech and expression, including viewpoints – wherever those opinions might fall on the spectrum ranging from conservative-to-liberal and however they may align with partisanship in the local community – on issues such as social justice, BLM, national anthem-related protests, gun violence in schools, climate change, immigration, women’s rights, gender equity in sports, LGBTQ discrimination, and other civic concerns.

Finally, it would be beneficial for schools or athletics programs to include a written social media policy in codes of conduct, primarily to be used as an educational tool to discuss social media issues with students and student-athletes, including a statement of purpose explaining the disruptive impact of inappropriate social media postings on the school/athletics program/team and the potential longterm impact of postings on student efforts to get accepted into universities, to be recruited by college sports teams, to be extended job offers, and to receive other life benefits in situations where social media histories are routinely reviewed. The written policies should not contain excessively generalized, “morals clause” type language that will likely be considered by courts to be too vague and overbroad to withstand First Amendment scrutiny, and should instead include a list of specific examples of problematic content in posts, including the above-referenced circumstances justifying school regulation such as substantial disruption, on-campus lewd, vulgar, or profane communications, bullying, threats, and the other “special characteristics” set forth in Mahanoy. Also, it is important for school officials to be aware that written social media policies incorporated into student or athlete codes of conduct are not automatic, “bulletproof” shields for the institution and that the written policies themselves would have to survive First Amendment judicial scrutiny in order to be adjudged valid justifications for imposing sanctions on students and student- athletes.