Supreme Court Decision Raises Student Speech Considerations For Independent Schools
This past June, the U.S. Supreme Court ruled in favor of a former Pennsylvania high school cheerleader who argued that she could not be punished by her public school for posting a profane caption to her Snapchat account outside of school grounds. In its decision, Mahanoy Area School District v. B.L., the high court ruled, by a vote of 8 to 1, that the student’s posting was protected by the First Amendment to the U.S. Constitution.
Because the Constitution generally limits only governmental actors, the Mahanoy decision does not directly apply to independent schools and their students. Nonetheless, as the Court’s holding may influence student and parent expectations generally as to what types of speech may be regulated by school administrators, the decision serves as an important reminder to independent schools to ensure that their policies and practices with regard to off-campus speech and conduct are clear, communicated to students and parents, and consistently applied.
The Mahanoy case arose out of a vulgar “snap” that a disgruntled cheerleader sent to some of her friends via Snapchat in 2017. The then 14-year-old sent a photo of herself and a classmate with their middle fingers extended to the camera, with a caption that read, “F--k school f--k softball f--k cheer f--k everything.” The student sent the snap in reaction to her failure to obtain a spot on the varsity cheerleading squad at the Mahanoy Area High School in Mahanoy City, Pennsylvania.
The student’s photo eventually came to the attention of school coaches and officials, and the student was suspended from the junior varsity cheerleading squad for the next year. The cheerleader sued the school, and won before both the Federal District Court and the Third Circuit Court of Appeals, which held that public schools have essentially no authority to regulate off-campus speech.
The school then filed a petition for certiorari with the Supreme Court, which granted the petition and accepted the case for review.
Supreme Court’s Decision
The Mahanoy case presented the Supreme Court with its biggest student speech case since its 1969 decision in Tinker v. Des Moines Independent Community School District, in which the Court upheld public school students’ right to wear black armbands at school as an expression of opposition to the Vietnam War. At issue in Mahanoy was whether schools may punish students for speech that occurs online and off-campus.
The Supreme Court rejected the Third Circuit’s broad holding that public schools have essentially no authority to regulate off-campus speech, but still ruled that the school’s punishment of the cheerleader was unjustified. In its decision, the Court held that the fundamental issue is not where or how student speech occurs – i.e., whether on school grounds or online – but, rather, the impact and effect of speech on the school’s operations.
In his opinion for the majority, Justice Breyer noted that “the vulgarity in B.L.’s posts encompassed a message, an expression of B.L.’s irritation with, and criticism of, the school and cheerleading communities.” He concluded that “the school’s interest in teaching good manners is not sufficient, in this case, to overcome B.L.’s interest in free expression.”
Justice Breyer emphasized, however, that schools do retain some authority to regulate students’ off-campus speech and conduct. On this point, Justice Breyer stated that the types of off-campus behavior that schools may legitimately address include, for instance, “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 material maintained within school computers.”
Justice Breyer also alluded to “three features” of off-campus speech that generally weigh in favor of student speech rights: (1) schools “will rarely stand in loco parentis” (in the place of a parent) when it comes to off-campus speech; (2) because schools already can regulate most student speech on campus, courts “must be more skeptical of schools’ effort to regulate” off-campus speech, as doing so would give schools the authority to prevent students from engaging in certain kinds of speech “at all”; and (3) schools themselves “have an interest in protecting a student’s unpopular expression” since they are “nurseries of democracy” and are intended to prepare students for a life outside of school where others will express unpopular ideas. Given these concerns, Justice Breyer stressed that schools must meet a “heavy burden” when seeking to regulate off-campus speech.
Recommendations For Independent Schools
While the Mahanoy decision is not legally binding on independent schools, the Supreme Court’s holding nonetheless may influence students’ and parents’ assumptions as to what types of student speech a school may seek to regulate. Thus, independent schools should carefully consider their expectations as to students’ use of social media and other forms of speech, both on and off campus. Schools should ensure that clear policies on these subjects are included in their handbooks or enrollment agreements, or as standalone policies.
In the absence of clearly written policies, disciplining a student for speech deemed inappropriate could raise legal risks. For instance, if a school’s enrollment agreement and student handbook make no mention of inappropriate social media use or other off-campus speech or behavior, parents could assert a claim for breach of contract.
In addition to adopting and communicating clear policies on these subjects, it is critical that schools apply such policies consistently and evenhandedly. Educating and training administrators and faculty members on the school’s speech and conduct-related policies is an important part of this.
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If you have any questions about the Supreme Court’s Mahanoy decision or need assistance in preparing or updating related policies for your school, please feel free to contact one of the Firm’s education attorneys.