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First Amendment Rights of Students Addressed by the Supreme Court
By Emily E. Strawbridge on June 28, 2021
First Amendment Rights of Students Addressed by the Supreme Court

The Supreme Court has issued a ruling in the matter of Mahanoy Area School Dist. v. B.L., finding in favor of the high school student disciplined for her use of offensive language in a social media post made off campus, outside of school hours and away from the school’s premises. By way of brief background, a high school student made a post on her snapchat account consisting of a picture of herself giving the middle finger with the caption, “F*&% School, F*&% softball, F*&% cheerleading F*&% everything.” This post occurred off-campus. This post was circulated and seen by the coaches of the cheerleading team. The student was suspended from participation on the cheerleading team.

This decision technically affirms the ruling of the Third Circuit Court. However, the Third Circuit Court ruled more generally that because the student’s speech occurred off campus, the Tinker standards did not apply and the school could not discipline her for engaging in free speech. The Supreme Court distinguished the analysis of the Third Circuit by ruling that the special characteristics that give schools additional license to regulate student speech do not necessarily disappear when the speech takes place off-campus.

The Supreme Court found that there was little to suggest that the student’s vulgar social media post, made off campus, created a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion, referencing their landmark ruling in Tinker, wherein it was held, “undifferentiated fear or apprehension . . . is not enough to overcome the right to freedom of expression.” The Court went on to hold that, “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

While finding that in this case the student’s speech was protected by the First Amendment, the Court found that, “the school’s regulatory interests remain significant in some off-campus circumstances.” Among off-campus behavior that may call for school regulation the Court noted:

  • 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.

Additionally, the Court defined the off campus/on campus distinction, treating as on-campus: all times when the school is responsible for the student; the school’s immediate surroundings; travel en route to and from the school; all speech taking place over school laptops or on a school’s website; speech taking place during remote learning; activities taken for school credit; and communications to school email accounts or phones.

The Court then provided three features of off-campus speech that distinguish the schools’ efforts to regulate speech from their efforts to regulate on campus speech. Those features are:

  1. A school, in relation to off campus speech, will rarely stand in loco parentis;
  2. From the student speaker’s perspective, regulations of off-campus speech, which computed with regulations of on-campus speech, include all the speech a student uttered during the full 24-hour day; and
  3. The school itself has an interest in protecting students’ unpopular expression, especially when expression takes place off campus.

In further explanation, the Court stated with respect to the first feature, geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related responsibility.

With respect to the second feature, the Court explained that 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 type of speech at all, and, with respect to speech occurring outside of school, the school will have a heavy burden to justify intervention.

Finally, with respect to the third feature, the Court instructed that, “America’s public schools are the nurseries of democracy,” and that the protection of the “marketplace of ideas” must include the protection of unpopular ideas. Accordingly the Court noted that that, “schools have a strong interest in ensuring that future generations understanding the workings in a practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”

The Court ruled, “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. 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. This case can, however, provide one example.”

What does this ruling mean for public school districts moving forward? The Supreme Court affirmed that public school districts do have the right in some circumstances to regulate off-campus speech of its students. The New Jersey Administrative Code has previously addressed conduct away from school grounds in, N.J.S.A. 6A:16-7.5. The language in N.J.A.C. 6A:16-7.5 is closely aligned with the analysis set forth by the Supreme Court. Therefore, this ruling indirectly affirms the language in this portion of the Code while offering additional instruction in the distinction between the kind of off campus speech that the District does and does not have a legitimate interest in regulating.

Accordingly, this ruling does not significantly alter the approach prescribed by the New Jersey Administrative Code for regulating off campus speech. It does however, offer additional analysis and instruction in reviewing these scenarios, especially with respect to speech occurring through social media accounts.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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