Off-Campus Speech: Will the New Normal Bring New Rules?

This article has been provided to Miller Nash Graham & Dunn by guest contributor, Melissa Rawlinson.

Our firm and its education team are excited to welcome back former and future colleague Melissa Rawlinson. Melissa is a former litigation and trial attorney at Miller Nash. After some adventures away from the firm, Melissa intends to rejoin the firm this Fall (’21) and we anticipate that some of her work will be with the firm’s robust education team. As Melissa prepares to reenter the firm, she’s examining a variety of issues important to educational institutions, and in doing so she prepared this article concerning an important First Amendment in front of the U.S. Supreme Court. The firm looks forward to sharing more details about Melissa’s return in the Fall! (Mike Porter, Education Team Leader).

How far does the long arm of a school reach? How protected is a student’s speech when it occurs off-campus? Does it matter if the speech could be harassing or bullying? These are not novel questions for school administrators, but the queries have been amplified with the shift to digital and remote learning during COVID-19. With the gates of the school campus being transformed throughout our region into the four walls of a student’s bedroom and where student conversation increasing has moved almost exclusively from face-to-face interactions to texting and posting on various platforms, schools grapple with how to regulate, monitor, and discipline in an ever-evolving school climate. Amidst the backdrop of the changing landscape of remote education, the United State Supreme Court has taken up a case about Snapchat and cheerleading tryouts to address contours for how schools should navigate their obligations and responsibilities in an increasingly digital world. This article addresses the backdrop of school-speech jurisprudence, and BL v. Mahanoy, a Third Circuit case headed to the Supreme Court, which could change the proverbial speech playing field.¹

Tinker and Its Progeny

The First Amendment stands as a bedrock of American jurisprudence and it is well settled that students do not shed their First Amendment right to free speech at the doors of the schoolhouse. Still, it is understood that student speech and conduct may be curtailed and restricted when the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” This rule—first set out in Tinker v. Des Moines²—arose from the Tinker siblings quietly donning black arm bands in opposition to the Vietnam War. The school suspended the high school students and instructed them to return without the arm bands. The Supreme Court found there were no facts that would have led school authorities to predict a disruption or interference at the school; rather, the suspension arose more out of a desire to avoid a controversy that might emanate from the expression. In cases following Tinker, the Court has permitted the regulation of student speech to punish vulgar language and lewd conduct, to exercise editorial control in school-sponsored activities when the actions related to pedagogical concerns, and to prohibit speech promoting illegal drug use. All of the Supreme Court cases, though, have addressed speech found to occur geographically on-campus.

The 9^th Circuit Approach

Throughout the United States, courts have demonstrated a willingness to extend the holding of Tinker and apply its analysis (now codified in many school district policies and students’ codes of conduct) to speech that occurs beyond the school grounds, including online speech. Moreover, most courts have deferred to the judgment of school officials, recognizing they are often better placed to determine the proper conduct and discipline in schools. The 9^th Circuit, in particular, has found that, when speech is not on school grounds, a school may regulate speech if the speech bears a sufficient nexus to the school. This initial inquiry considers relevant factors including “(1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable that the speech would reach and impact the school; and (3) the relation between the content and context of the speech and school.”³ The Ninth Circuit has permitted schools to regulate the speech of a student who made violent statements on his MySpace account referring to a potential school shooting.⁴ It has even allowed a school to discipline a student for notes written in a private journal kept in his bedroom that contained threats against his school.⁵ Other circuits have similarly found a school was justified in disciplining a high school senior who created and posted a MySpace page that ridiculed a fellow student.⁶ And, a suspension against twin brothers who created a blog (including offensive, racist, and sexually explicit comments) to “discuss, satirize, and vent” about events at their high school was upheld.⁷ Still, district courts using the Tinker analysis have found that some off-campus speech on YouTube and Facebook has not created enough of a disruption to merit infringement on free speech.⁸

BL v. Mahanoy

The Third Circuit, however, has taken a dramatically different analytical approach. In BL v. Mahanoy, the Third Circuit found that Tinker did not apply to off-campus speech.⁹ BL, a rising high school sophomore, was placed on the JV cheerleading squad for a second year. Frustrated with her placement and having learned a freshman was given a spot on the varsity squad, BL, on a Saturday while at a local store, took a photo of herself and a friend sticking out their tongues and raising their middle fingers. She posted the photo to her Snapchat story (viewable by about 250 “friends”—many who were fellow students) accompanied with the caption: “F**k school f**k softball f**k cheer f**k everything.” She followed up the first post with another, complaining about the freshman placed on the varsity squad. Some other cheerleaders, upset by the posts, showed them to a coach. The coaches removed BL from the JV cheerleading squad finding violations of both team and school rules. BL brought an action against the school district under 42 USC §1983 alleging (among other claims) that her suspension from the team violated the First Amendment. BL prevailed on summary judgment at the district court and the school district appealed.

The Third Circuit argued that the Tinker analysis was a narrow exception to the expansive rights of free speech and rejected the nexus and foreseeability tests that other circuits have adopted. Rather, it found that Tinker did not apply to off-campus speech that is “outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”¹⁰ The court pointed both to the certainty allowed with its rule for students and administrators and its preservation of free speech rights, preventing too much speech being enveloped by the school’s authority. While it is worth noting that the court left open whether off-campus speech that threatens violence or is harassing would be governed by the same test (as other courts have applied),¹¹ the decision to refrain from applying Tinker to off-campus speech left open questions for schools in this circuit.

Interest in BL v. Mahanoy

With the conflicting decisions between the Third Circuit and other circuits, along with differing analyses that have been applied in circuits, the Supreme Court granted certiorari to address this conflict. Interest in the case has been keen with school districts and educational groups throughout the country, largely because the Third Circuit’s ruling calls into question many of the existing policies schools use on a day-to-day basis. The ruling will add an additional layer of complexity for schools that are attempting to effectively address both cyberbullying and threats of violence that occur off of the school grounds when the impact and effect of the speech spills over into the school. In short, schools are seeking clarity.

Practical Considerations

The 9^th Circuit has likened the task of school administrators determining whether and how to regulate student speech as “a feat like tightrope balancing.”¹² The demands of the First Amendment and the expectations of schools as breeding grounds for fostering lively debate and thoughtful discourse run up against the concomitant need for the schools to maintain order, discipline, and safety for their students. The Court in Tinker could hardly have contemplated the variety of medium, particularly online, that today provides forums for student speech, and the practical reality of online school in the midst of a pandemic exacerbates any clear demarcation between on- and off- campus speech. With that backdrop, some practical matters to keep in mind:

1. Facts matter when speech is geographically off-campus. Courts routinely look at the “totality of the circumstances” and analyze not just the speech and its content, but the students involved, their history within the school, the climate of the school environment, when and where the speech was made, and the connection of the speech to the school.
2. When speech threatens violence towards the school, students, or faculty, courts routinely defer to school administrators.
3. When cyberbullying takes place off-campus outside of school hours, yet its effects spill over and overlap with on-campus misconduct, state law, (e.g., ORS 339.351-339.364) may require school districts to follow their mandated policies to review and respond to any alleged cyberbullying promptly and thoroughly.
4. Other laws may compel schools to regulate off-campus speech. Tinker does not require a school to wait for disruption or disorder to occur and schools have an affirmative duty to prevent a disruption particularly when other statutes are implicated. State and federal anti-discrimination laws may impose obligations when mistreatment is directed to students in protected classes.¹³
5. Even though there may be circumstances when off-campus speech can be regulated and Tinker applies, Tinker’s balancing test protects student speech and limits schools’ ability to punish speech. In the absence of a constitutionally permissible reason to regulate speech, the default is free speech. Discomfort, embarrassment, unpleasantness are all part of a free society and—without more—are recognized as part of a school experience.
6. School administrators that feel compelled to act on issues involving speech, should ensure that they have a sound and thoughtful record of how the student's conduct or speech impacts and disrupts the school environment.
7. Watch for an update in June. The Supreme Court will hear oral argument in late April and likely render its decision in June before this term ends. We will promptly update you on its decision and what it means for schools and your policies. In the meantime, we are here to help you try to answer these tough questions, many which are close calls.

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[1] B.L. v. Mahanoy Area Sch. Dist., 964 F3d 170, 186 (3d Cir 2020).

[2] 393 US 503, 89 S Ct 733, 21 L Ed 2d 731 (1969)

[3] McNeil v. Sherwood Sch. Dist. 88J, 918 F3d 700, 707 (9^th Cir 2019).

[4] Wynar v. Douglas County Sch. Dist., 728 F3d 1062 (9^th Cir 2013).

[5] McNeil, 918 F3d at 708.

[6] Kowalski v. Berkeley County Sch., 652 F3d 565 (4^th Cir 2011).

[7] S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F3d 771 (8^th Cir 2012).

[8] J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F Supp 2d 1094 (CD Cal 2010); Burge ex rel. v. Colton Sch. Dist., 100 F Supp 3d 1057 (D Or 2015).

[9] B.L 964 F3d at186.

[10] Id. at 189.

[11] Id. at 190.

[12] Wynar, 728 F3d at 1064.

[13] E.g., Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendment Act of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act