On June 23, 2021, the U.S. Supreme Court issued its decision in Mahanoy Area School District v. B.L., finding in favor of the student plaintiff (B.L.) in a highly anticipated school speech case. The Supreme Court held that, though public schools may have a special interest in regulating certain off-campus student speech, the interests offered by Mahanoy Area School District were insufficient to overcome B.L.’s right to free expression under the specific facts presented in the case.

One of the main issues before the Court in Mahanoy was whether a public school’s ability to discipline students for off-campus speech is governed by the standard set in Tinker v. Des Moines Independent Community School District. In Tinker, the Court held that public school officials have a special interest in regulating student speech that materially and substantially disrupts the work and discipline of the school. However, since the landmark 1969 decision, lower courts have disagreed on whether, and to what extent, Tinker applies to off-campus speech, setting the stage for resolution at the court of last resort. Ultimately, though, the Court declined to clearly outline the extent to which Tinker applies to off-campus speech, and when First Amendment standards give way to a school’s special need to prevent off-campus disruption. Instead, the Supreme Court held to a case-by-case determination standard. 

Mahanoy concerned a public high school student who, over the weekend, while off campus, and via a private Snapchat account, transmitted vulgar language and gestures criticizing the school and its cheerleading team. This occurred after she did not make the roster for the Varsity cheerleading squad but only the Junior Varsity squad. In response, the school suspended the student for a year from the cheerleading team, and the student sued the school district on First Amendment grounds. The District Court ruled in favor of the student, finding that the punishment violated the First Amendment because her social media posts had not caused a substantial disruption. On appeal, the Third Circuit sided with the student, as well, but concluded that Tinker does not apply to off-campus speech, that the school had no special license to regulate student off-campus speech, and therefore that the school violated the First Amendment in punishing the student.

Affirming the Third Circuit’s holding in favor of the student but rejecting its reasoning, the Supreme Court determined that the special characteristics enabling schools to regulate speech under Tinker do not always disappear when speech takes place off campus.  For example, circumstances that may implicate a school’s regulatory interest include cases of severe bullying or harassment; threats; failure to follow rules concerning lessons, paper-writing, computer use, or participation in online school activities; and breaches of school security devices. 

However, the Supreme Court emphasized three features of off-campus speech that typically distinguish schools’ efforts to regulate off-campus speech:

1. Schools rarely stand in loco parentis when a student speaks off campus;
2. Regulations of off-campus speech, when coupled with regulations of on-campus speech, include all speech a student utters throughout the day, and courts must therefore be more skeptical of schools’ efforts to regulate off-campus speech; and
3. Schools themselves have an interest in promoting students’ unpopular off-campus expression, as America’s schools are “nurseries of democracy.” 

Because the record did not adequately show that B.L.’s Snapchats were materially and substantially disruptive (a mere five to ten minute discussion in algebra), and  because the circumstances of B.L.’s speech diminished the school’s interest in its regulation, the Supreme Court determined that the District had violated B.L.’s First Amendment rights when it suspended her from the cheerleading squad. 

Although the Court declined to articulate a bright-line test as to the extent of Tinker’s application to off-campus conduct, the majority opinion lends some guidance to school districts based on the facts and circumstances of individual cases:

• While the right to regulate off-campus speech is greatly diminished in many circumstances, school districts still have a special interest in restricting certain off-campus expression, including that which involves bullying, harassment, threats, failure to follow school homework and Internet usage policies, and breaches of security.
• When speech does not fall into one of the aforementioned categories, schools should be especially wary of disciplining students for off-campus expression.
• In lieu of clear Supreme Court guidance, lower courts may devise their own standards for assessing off-campus speech.

Wisconsin school districts should also consider the following:

• Wis. Stat. § 120.13(1)(c), which states in part, “that a pupil while not at school or while not under the supervision of a school authority engaged in conduct which endangered the property, health or safety of others at school,” continues to provide a basis to discipline students for bullying and threats, provided that the facts and circumstances and the evidence on the record demonstrate a nexus between the off-campus conduct and endangering the property, health, or safety of others at school.
• Districts should maintain policies that inform and regulate student conduct and discipline during both the regular school day and extracurricular activities. Districts should review their policies to reflect that discipline may result from off-campus conduct as appropriate, especially with respect to off-campus bullying, harassment, and threats.  
• Our federal district will continue to weigh in to resolve disagreement at the district court level regarding the standards to be applied on when a school can restrict speech, such as what occurred in Judge Griesbach’s recent decision related to a school’s “no gun” dress code provision in N.J. v. Sonnabend. 

If you have any questions about this Legal Update, please contact Attorney Mary Gerbig at mgerbig@buelowvetter.com; Attorney Corinne Duffy at cduffy@buelowvetter.com; Attorney Claire Hartley at chartley@buelowvetter.com; Attorney Emily Turzinski at eturzinski@buelowvetter.com or your Buelow Vetter attorney