The U.S. Supreme Court late Friday agreed to hear a major case on student speech, granting a Pennsylvania school district’s appeal of a lower court ruling that had overturned the discipline of a high school student who posted a vulgar message on Snapchat in a dispute involving her cheerleading team.
The question is one the high court has sidestepped several times in recent years: Whether its landmark 1969 decision in Tinker v. Des Moines Independent Community School District, applies to student speech that occurs off campus, particularly on the internet. The question has become even more urgent as schools have shifted to remote learning because of COVID-19, advocates say.
In Tinker, the court upheld the right of students to wear black armbands to protest the Vietnam War, but allowed room for school administrators to regulate speech that would disrupt the work and discipline of the school. The high court has narrowed student speech rights in a series of cases since Tinker.
The new case, Mahanoy Area School District v. B.L. (No. 20-255), stems from a 2017 incident in which a sophomore, identified as B.L., posted a message on Snapchat one Saturday night that said “F**k school ... f**k cheer f**k everything” after she was placed on the junior varsity cheerleading team instead of the varsity squad.
While “snaps” are self-deleting after a short time, a teammate of the student took a screenshot of her message, and it came to the attention of cheerleading coaches, who said it violated team and school rules to avoid foul language and disrespect for teammates and coaches. B.L. was removed from the JV team for the season, a decision upheld by administrators and the school board.
B.L. and her parents sued the Mahanoy district, alleging that her removal from the team violated the First Amendment free-speech clause and that the school’s rules were unconstitutionally overbroad and vague.
The student won in a federal district court, which awarded her $1 in nominal damages plus attorneys’ fees. That ruling was affirmed last June by a panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.
“To be sure, B.L.'s snap was crude, rude, and juvenile, just as we might expect of an adolescent,” Judge Cheryl Ann Krause wrote for the unanimous 3rd Circuit panel. “But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so.”
The panel took note of two earlier cases in which the full 3rd Circuit held that students who ridiculed their principals online could not be punished by school authorities, decisions that the Supreme Court later declined to review.
The panel in the Mahanoy district case last year clarified a key point about discipline for off-campus speech it said was not crystal clear from the earlier 3rd Circuit decisions.
“We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur,” the panel said last year.
The panel acknowledged that five other federal appeals courts have ruled that Tinker can be applied to student off-campus speech when there is a sufficient “nexus,” or connection, to school.
At the time of the 3rd Circuit’s decision, Justin Driver, a professor at Yale Law School and the author of a 2018 book about student rights under the U.S. Constitution, told Education Week that he agreed with the ruling but that the Supreme Court should take up the case to provide greater clarity to lower courts and schools about regulation of student off-campus speech.
The Mahanoy school district, in its appeal to the Supreme Court, cited Driver’s comment among other arguments urging the court to review the case.
“This case presents an ideal vehicle for resolving a critically important and acknowledged circuit conflict over whether public K-12 schools may discipline students for any off-campus speech,” says the district’s brief, filed by veteran Supreme Court litigator Lisa S. Blatt of Washington. “The question presented is all the more important in the Internet age. Students’ near-ubiquitous and near-constant access to social media creates ever more avenues for off-campus communications that can rapidly permeate the school environment.”
The National School Boards Association filed a friend-of-the-court brief in support of the Pennsylvania district that was joined by the American Federation of Teachers, the National Association of Elementary School Principals, the National Association of Secondary School Principals, and AASA, the School Superintendents Association.
“The 3rd Circuit’s stark line between off-campus and on-campus speech is untenable, especially in the age of social media,” the brief says. “It is now unclear if schools can regulate, among other things, racist, vulgar, or sexually harassing speech that occurs online and off campus, even if that speech is directed at other students or school administrators, and even if it is otherwise reasonably likely to materially disrupt on-campus life.”
Both the district and the school groups argue that the rise of remote learning because of COVID-19 raises new questions about schools’ authority to discipline students for online behavior.
“Under the 3rd Circuit’s bright-line rule, it is unclear that teachers can discipline students who disrupt the online classroom,” the NSBA brief says. “The ongoing shift from the conventional in-person classroom to remote learning has substantially obscured any clear line that may once have existed between on-campus and off-campus student speech.”
The American Civil Liberties Union of Pennsylvania, representing B.L. and her parents, unsuccessfully urged the court not to take up the case, arguing that the ruling below was correct.
“In a weekend comment in an evanescent Snapchat message, B.L. swore in expressing her disappointment at not making the varsity team to her friends,” the ACLU brief says. “The notion that a school can discipline a student for that kind of spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition, and finds no support in this court’s student speech cases.”
The Supreme Court granted review of the Mahanoy district’s appeal the same day the justices took it up for the first time in their private conference. It was one of a dozen cases the court granted review on Jan. 8 as it approaches the mid-January cutoff point for scheduling arguments for decision this term.
The student speech case could be argued this spring, likely in April, and decided by June, though the court sometimes puts off some cases granted in January until the next term.