Supreme Court Rules in Favor of Frustrated Cheerleader; But Schools Can, If They Proceed with Caution, Discipline Students for Some Off-Campus Speech

Melissa Lehane Rawlinson has provided an additional update on Mahanoy Area School District v. B.L.. Here, Melissa shares observations of the United States Supreme Court's ruling. Jollee Patterson also contributed to this article.

Disgruntled cheerleader Brandi Levy scored a victory from the United States Supreme Court yesterday in an 8-1 decision finding that her one-year suspension from the JV cheerleading squad violated the First Amendment.¹ Levy’s profanity-laden Snapchat post and accompanying vulgar image snapped on a Saturday night from the Cocoa Hut in Mahanoy City, Pennsylvania is speech within the protection of the First Amendment and outside the reach of punishment from her high school. Despite Levy’s victory, however, the Court affirmed the right of schools to regulate some speech that occurs off-campus.

Following is a more detailed analysis of the case, but the quick takeaways are that schools can still consider disciplining student expression that occurs off-campus if there is evidence that the speech caused (or may cause) a substantial disruption or threatened harm to the rights of others. But, schools must avoid disciplining students for speech that is political or religious in nature, or causes upset primarily because the viewpoint expressed is unpopular. In all cases, schools should carefully document the decision-making process in deciding whether—or not—to discipline students for off-campus expression. Remember, too, that schools can pursue non-disciplinary, educational options to teach students about the impact of their expression on others, even if such expression is protected under the First Amendment. One student’s protected expression can sometimes feel like bullying or harassment to other students, and schools must carefully walk the line between protecting free speech while preventing bullying. It is a good idea to consult counsel in these difficult situations.

The Supreme Court did not announce a radical change in First Amendment student speech analysis. In an opinion written by Justice Stephen Breyer, it affirmed its landmark case of Tinker v. Des Moines that imbues schools with the ability to regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” and the trilogy of cases following Tinker where schools’ limitations of student speech were permissible. The Court, however, rejected the analysis (but not the finding) of the Third Circuit, and while it refrained from pronouncing “a broad highly general First Amendment rule stating just what counts as ‘off campus’ speech,” it made clear that a “school’s regulatory interests remain significant in some off-campus circumstances.” The Court delineated a list of circumstances where a school’s regulation may be appropriate including bullying and harassment of fellow students and threats directed to teachers and other students. The court was reluctant, however, to create an exhaustive list with the recognition that there exists a variety of changeable factors impacting the school off-campus environment.

The Court distinguished on-campus from off-campus speech with three features (focusing in turn on parents, students, and the school) that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.” Firstly, when students speak off-campus, schools are less likely to stand in loco parentis and students are more likely within the control of parents who may choose (or not choose) to regulate their child’s speech. Secondly, from a student’s perspective, regulation of speech after school hours—when not involved in school activities—could amount to an untenable 24/7 surveillance of speech. Finally, schools have an interest in fostering schools as “nurseries of democracy” and protecting the opinions expressed of their students even if they are “unpopular.” The Court concluded that it would “leave for future cases to decide when, where, and how these features mean the speaker’s off-campus location will make the critical difference.”

With that backdrop, the Court closely examined the facts and circumstances of Ms. Levy’s case and found that there were insufficient facts to take the speech outside of First Amendment protection. The snaps were made on a Saturday evening, away from school, not at a school event, on the student’s own device. The snaps did not mention the school by name, were not meant to be widely distributed, and were intended only to be seen by her private group of Snapchat friends. Taken together, these factors “diminished the school’s interest in punishing the utterance.” The Court also considered the school’s interests and found that despite a commitment to fostering manners and preventing vulgarity, given both the limited disruption to the school community and lack of significant impact on team morale, the right to free expression could not be curtailed.

The Supreme Court did not examine, accept, or reject any of the differing approaches that have been used in student speech cases by a variety of Circuits throughout the country. In fact, its silence on these methods may leave attorneys and lower courts scratching their heads to know what analysis to apply in cases when speech occurs off-campus. Justice Samuel Alito recognized this challenge in his concurrence. His clarifying discussion leads to a reasonable conclusion that the analysis that the 9^th Circuit utilizes in its off-campus student speech cases (the nexus test) likely still applies. That said, lower courts now will be tasked with taking the Court’s endorsement of the free speech rights of students and balancing that with the good faith and well-intended motives of teachers and administrators.

As schools look beyond this ruling and search for its practical application, there are a few notes to ponder:

1. Facts (still) matter. The Supreme Court took great effort to examine the very particular facts of this case in making its decision. The location of the speaker, means of communication, extent of dissemination, and actual disruption within the classroom and on-campus school environment will all be factors in an analysis.
2. The Supreme Court listed the following areas that may call for regulation:

Speech that falls within one these enumerated categories can arguably rise to a level where the First Amendment rights of the students may be curtailed and schools can punish and regulate the speech. If off-campus speech is not within this list, however, schools should exercise caution in punishing students.

3. Students maintain a right to free speech, especially when outside the schoolhouse gate. When student speech is off-campus and not directed to the school, its teachers, administrator or fellow students, schools will be limited in their permissible regulation of that speech.
4. Questions remain as to how the lower courts will analyze these questions of off-campus student speech that are more directly school- and fellow-student- focused than Ms. Levy’s weekend snaps. We will continue to monitor these cases and decisions and will keep our clients informed how the lower courts reconcile the Supreme Court’s ruling with the established nexus and foreseeability tests that Circuits have applied.
   
5. The most salient advice and takeaway from the Court’s decision is Justice Alito’s closing admonishment from his concurrence: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

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¹ Mahanoy Area School Dist. v. B.L., 594 US ___, No. 20-255, slip opinion (June 23, 2021).