In what could be an important precedent in these days of academic political correctness and cancel culture, the Supreme Court has confirmed that students still have First Amendment rights.
The case, Mahanoy Area School District v. B.L., dealt with a 14-year-old cheerleader, “B.L.,” who, after failing to win a spot on her public high school’s varsity cheer squad (she was given a spot on the JV), reacted by posting an image of a raised middle finger to the 250 “friends” on her Snapchat account with the caption, “F*** school F*** softball F*** cheer F*** everything.” The message was sent after school hours and from an off-campus location. When other cheerleaders complained to the coaches, the school suspended the unhappy teenager from the JV cheerleading team for a year. B.L. and her parents filed a lawsuit alleging a violation of her First Amendment rights.
The Supreme Court had previously held in the 1969 case Tinker v. Des Moines Independent Community School District that a public high school cannot constitutionally limit on-campus speech unless it would “substantially interfere with the work of the school or impinge upon the rights of other students.” In the current case, the 3rd Circuit Court of Appeals held that the Tinker standard allowing school discipline for disruptive speech should not apply to off-campus speech.
The Supreme Court affirmed but on different grounds. It held that the First Amendment allows schools to regulate some off-campus speech but that the authority is more limited than in schools’ regulation of on-campus speech.
The court found that three features of off-campus speech distinguish schools’ efforts to regulate it from their efforts to regulate on-campus speech. First, unlike on-campus settings, where a school acts in place of a child’s parents to protect, guide, and discipline students, a school will rarely stand in loco parentis when a student speaks off campus.
Second, allowing regulation of off-campus speech, coupled with regulation of on-campus speech, would regulate all the speech a student utters during the full 24-hour day. Courts must be more skeptical of a school’s efforts to regulate speech that occurs outside school or a school program or activity, 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” and should encourage the free exchange of ideas needed for a representative democracy. Taken together, these features of off-campus speech mean that the First Amendment grants less leeway to schools’ efforts to regulate off-campus speech compared to their efforts to regulate on-campus speech.
The court held that B.L.’s speech, while vulgar, did not contain features that would place it outside the First Amendment’s protection and that the school’s interest in discouraging vulgar language in the school community is diminished for off-campus speech. The social media post did not identify the school or target any member of the school community. In addition, the school did not demonstrate that B.L.’s posts resulted in “substantial disruption” of a school activity or threatened the rights of others.
While none of the eight judges in the majority laid down rigid rules for future cases, their analyses and language seem to bode well for cases in which school officials might claim that a student should be disciplined for politically incorrect speech that “hurts” other members of the school community. This is particularly true for off-campus speech and possibly for in-school speech as well. Significantly, Justice Stephen Breyer’s majority opinion, quoting the 50-year-old Tinker decision, found that “simple ‘undifferentiated fear or apprehension … is not enough to overcome the right to freedom of expression.’”
And Justice Samuel Alito’s concurrence, joined by Justice Neil Gorsuch, quotes several pages of precedents to support the idea that schools may not suppress speech “simply because it expresses ideas that are ‘offensive or disagreeable’” or “because it expresses thoughts or sentiments that others find upsetting.”
Public school students who have the courage and temerity to make statements challenging current orthodoxies such as critical race theory and climate change should be reassured by the knowledge that vague assertions of harm and disruption will not suffice to silence them. The First Amendment and the Supreme Court will likely protect them from official retribution.