Circuit Courts Tinkering Around With Issue of Students’ Off-Campus Speech and Its Effect on School Atmosphere. Can the Supreme Court Finally Resolve the Split?

April 22, 2021

If given a chance to go back to high school for a day, many adults would probably decline. As a time filled with anxiety and confusion, high schoolers struggle to find their voice and independence. With now seemingly infinite amounts of communication platforms, students can express their feelings about the school day beyond the final bell. For a student who earned a poor grade on their final exam, this could mean taking it to Instagram to vent their frustrations to their classmates. For a student who is voting for a specific presidential candidate, that could mean speaking out at a political rally. Or, for a student aspiring to be a musician, this could mean singing explicit lyrics on their YouTube channel.

Fifty years ago, in the landmark decision of Tinker v. Des Moines Independent School District, the Supreme Court held that schools could not regulate student expression unless it would “materially and substantially disrupt the work and discipline of the school” or would interfere with “the rights of others.” In other words, the Court made it clear that students’ free speech rights do not stop at the “schoolhouse gate.” Thus, Tinker applied to on-campus conduct. A new issue arose when B.L, a sophomore cheerleader who got cut from the varsity cheerleading team, aired her colorful annoyances off-campus, on her Snapchat account, to 250 of her closest friends. It thus begs the question: can students be disciplined because of the effect of their off-campus speech on the on-campus environment?

One of B.L.’s Snapchat “friends” and teammates took a screenshot of the crude Snapchat and alerted one of the cheerleading coaches at Mahanoy Area High School (“MAHS”). The cheerleading coaches at MAHS decided B.L.’s Snapchat violated team and school rules, which required cheerleaders to respect their school and avoid spreading profanity on the internet. The coaches also felt that B.L.’s Snapchat violated school rules which prohibit students from acting in a way that would tarnish the school’s reputation.

And if Tinker does apply to off-campus speech, where should school districts draw the line to adequately protect individual student expression, something especially imperative during high school years, while also protecting a safe, educational environment?

As a punishment, the coaches suspended B.L. from the cheerleading team for one year. Her parents disputed the decision with the athletic director, the school principal, the district superintendent, and the school board. However, B.L.’s parents’ appeal was denied, and the school supported the year suspension. Thus, B.L. sued the Mahanoy Area School District, claiming, among other things, that her suspension from the team violated the First Amendment.

The District Court granted summary judgment in favor of B.L. explaining that: (1) B.L.’s suspension implicated the First Amendment even though participating in extracurricular school activities is a privilege, (2) B.L.’s off-campus snap was not subject to discipline under Tinker, and (3) B.L.’s snap had not caused any actual or foreseeable harm to the school environment. Ultimately, the court held that B.L.’s snap was protected and that she did not waive her right to post it.

The Mahanoy Area School District appealed to the Third Circuit, which affirmed the District Court’s decision. In the Third Circuit’s opinion, the court highlighted the three distinct circuit splits on the issue of students’ off-campus speech. In one group, including the Second and Eighth Circuits, the courts have applied Tinker “where it was reasonably foreseeable that a student’s off-campus speech would reach the school environment.” In another group, including the Fourth and Ninth Circuits, the courts have applied Tinker to off-campus speech with a “sufficient ‘nexus’ to the school’s ‘pedagogical interests.’” Lastly, some circuits, like the Fifth Circuit, have applied Tinker to “off-campus speech without articulating a governing test or standard.” The Mahanoy Area School District petitioned for a writ of certiorari to review the Third Circuit’s decision, and the Supreme Court granted it in January.

Later this month, the Supreme Court will hear oral arguments to resolve the circuit split and create a binding precedent of whether Tinker applies to student speech that occurs off-campus. And if Tinker does apply to off-campus speech, where should school districts draw the line to adequately protect individual student expression, something especially imperative during high school years, while also protecting a safe, educational environment? More specifically, what kind of off-campus speech would be worthy of discipline? Should regulation only apply to speech that is harmful because of its violent or sexual nature? Or is it dangerous to draw bold lines between the off-campus speech that is and isn’t protected from school discipline?

Anna Comer

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