By Lisa Soronen
In Mahanoy Area School District v. B.L., the U.S. Supreme Court held 8-1 that a public school could not discipline a student who transmitted to her Snapchat friends, outside of school hours and away from the school’s campus, vulgar language and gestures criticizing the school and the school’s cheerleading team.
In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court held that schools have a special interest in regulating student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” The 3rd Circuit held that Tinker doesn’t extend to off-campus speech.
The Supreme Court didn’t go that far. In an opinion written by Justice Stephen Breyer, the court stated “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.” First, while a school may stand in place of a parent or guardian when the student is on school grounds during school hours, such is rarely the case when the student speaks off campus. Second, if the school can regulate both on- and off-campus speech, a student’s speech is subject to school regulation 24 hours a day. Finally, schools have an interest in protecting student’s unpopular expressions particularly off-campus because “America’s public schools are nurseries of democracy.”
After not making the varsity cheerleading team or getting her preferred softball position, on a weekend at a convenience store, Brandi Levy posted on Snapchat an image of her and a friend with their middle fingers raised and a profanity prefacing “- school, - softball, - cheer, - everything.” Levy was identified only by her initials in the decision because she was 14 when the case was filed. She is now an 18-year-old college freshman.
The court concluded that the school disciplining Levy in this case for her speech violated the First Amendment. According to the court, Levy's speech, which involved criticizing school rules “did not involve features that would place it outside the First Amendment’s ordinary protection.” Also, Levy's posts occurred outside school hours, away from school, to only a private circle of Snapchat friends; and she did not “identify the school in her posts or target any member of the school community with vulgar or abusive language.”
The school’s interests in teaching good manners and punishing vulgar speech were “weakened considerably by the fact that Levy spoke outside the school on her own time.” Additionally, little evidence suggested the posts caused substantial disruption in the classroom or on the cheerleading team.
All states require school districts to adopt anti-bullying policies. About half of the states allow school to discipline students for off-campus bullying. The court didn’t offer an opinion on whether or when these laws are constitutional. It did however state the following: “The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. These include serious or 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.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog.