Disciplining Student’s Speech Violates First Amendment

KLAW Blog · March 28

You go girl!!!

A public high school was found to have violated the First Amendment when it suspended a student from her cheerleading team for using profane speech off campus.

Mahanoy Area Sch Dist v BL, No 20-255, ___ US ___ (June 23, 2021).

The U.S. Supreme Court has determined that Pennsylvania high school officials did not possess the jurisdiction to reprimand a student for her off-campus, profane Snapchat post, which was made out of frustration after not being selected for the varsity cheerleading squad.

The court ruled 8-1 that the social media post did not cause a substantial disruption under Tinker v. Des Moines Independent Community School District.

A female student at Mahanoy Area High School in Pennsylvania, who did not make the school’s varsity cheerleading team but was instead placed on the junior varsity team, expressed her frustration by posting two images on Snapchat while at a local store during the weekend.

One image included explicit language and gestures alongside general comments about cheerleading and school, although it did not specify the school by name.

The second image only contained the following text: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?”

The cheerleading coach and school administrators were made aware of B.L.’s posts and subsequently decided to suspend her from the team for a duration of one year.

Attorney Michael Komorn

State / Federal Legal Defense

With extensive experience in criminal legal defense since 1993 from pre-arrest, District, Circuit, Appeals, Supreme and the Federal court systems.

KOMORN LAW (248) 357-2550

Through her parents, Levy sued in federal court, asserting that the disciplinary action violated her First Amendment right to free speech. Additionally, they contended that it was the responsibility of her parents, not school officials, to administer discipline.

A federal district court and the U.S. Court of Appeals for the 3rd Circuit both ruled in favor of Levy, stating that the Tinker substantial disruption standard does not apply to off-campus, online student speech.

Alternatively, the 3rd Circuit also determined that, even if Tinker was deemed applicable, the post did not reach the threshold of causing substantial disruption.

The school district wasted tax dollars and appealed the Supreme Court decision.

Justice Stephen Breyer Reasoning that a school’s regulatory interests are diminished when a student partakes in off-campus social media speech, it was identified that three distinct features of social media speech govern such an approach.

With regard to off-campus speech by students, school officials rarely stand in loco parentis. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.”
Courts should be skeptical of school officials’ regulatory interest in policing student social media speech, given that such speech could take place anytime during a 24-hour day.
Schools have an interest in protecting even unpopular student speech, because “America’s public schools are the nurseries of democracy.”

He emphasized the importance of officials maintaining regulatory oversight over social media speech involving cyberbullying, harassment, threats, or breaches of school security devices.

Justice Alito’s concurring opinion advises public schools to exercise thoughtful caution when seeking to regulate off-campus speech.

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