On April 28th, the Supreme Court of the United States heard oral arguments in Mahanoy Area School District v. B.L., a student free speech case that every public school district in the country needs to be watching.
Background
This situation arose with a Snapchat message posted while off campus by a then 14-year old girl on a Saturday following the announcement of the results of cheerleading tryouts. That girl ("B.L.") had been placed on the junior varsity team for her sophomore year of high school, despite an incoming freshman making the varsity squad. Her anger over that decision resulted in a few Snapchat messages, among the messages was a picture of her and a classmate raising their middle fingers with the caption (uncensored in the original message): "F*** school f*** softball f*** cheer f*** everything." Although Snapchat messages are designed to disappear within 24 hours, one of the recipients took a screenshot of the message, and it made its way to B.L.'s coaches. B.L. was then suspended from the junior varsity team for one year, and she decided to sue. B.L. claims that the suspension violated her constitutional right to free speech.
Tinker Standard in Public Schools
Public schools are subject to the First Amendment's protection of free speech. In the 1969 case Tinker v. Des Moines Independent Community School District, the Supreme Court specified that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," but also held that student conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others" is subject to restriction by public schools. Practically, this means that a school district can regulate some speech that other government entities could not, if the speech causes disruption in the educational setting.
New Questions Posed on Student Free Speech to the Court
The question the Supreme Court is considering in Mahanoy is the scope of speech that falls within the Tinker doctrine. Are public schools limited to regulating disruptive speech that takes place while a student is on campus or at a school sponsored event? Can schools regulate student speech made at any time or place as long as the content is related to the school and potentially disruptive? The parties each proposed different ways for the Court to apply Tinker and other First Amendment cases when it comes to student speech occurring online, outside of school hours, and off campus.
Oral Arguments
B.L.'s attorney described the school's proposed approach of extending Tinker to certain online conduct outside of school as using a "blunt instrument" that would effectively become a rule (rather than an exception) limiting First Amendment rights of public school students throughout the country. In contrast, the school district's attorney characterized B.L.'s proposed approach as "Frankenstein's monster of First Amendment doctrine" as lower courts would be forced to determine whether Tinker applied to a particular speech and, if not, apply traditional strict First Amendment doctrine to students with additional considerations in light of each student's "youth and context."
What This Means to You
As the National School Boards Association noted in a friend of the court brief, the Mahanoy question is especially important for school districts across the country because of students' frequent use of social media. This becomes even more critical when assessing a school districts ability to respond to bullying that takes place online while away from school grounds. The Justices were carefully considering this possibility, with hypotheticals presented by Justices Sotomayor and Kagan speculating that, without applying Tinker to such online speech, a school district's desire to respond to many occasions of student bullying likely would not reach the level of an ordinary First Amendment exception.
The Supreme Court's decision, expected later this year, will provide some guidance for public school administrators on how free speech affects their ability to respond to online student speech. The oral arguments last week suggested, however, that the Justices may settle on a narrow ruling in this difficult case in order to avoid "writing a treatise" with broad implications for other situations. The Husch Blackwell K-12 Education team will be watching closely for the release of the decision and will update this blog with a new post once the decision is released.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
