Third Circuit Rules School Officials Cannot Discipline Students for Off-Campus Speech

On June 30, 2020, in B.L. v. Mahonoy Area School District, the U.S. Court of Appeals for the Third Circuit held that school officials cannot discipline  students for off-campus social media speech. Specifically, the appellate court held that the school district denied the student’s First Amendment right to free speech when it suspended her from an extracurricular team following her off-campus Snapchat posts.

In this case, the student tried out for cheerleading as a sophomore and made the junior varsity team, while an incoming freshman made the varsity team. After  receiving her results, over the weekend, the student aired her frustration with the cheerleading tryout results and the school by posting Snapchat messages stating, “F— cheer,” and posting a picture of herself and a friend with their middle fingers raised. The student’s Snapchat posts were visible to approximately 250 Snapchat friends, many of whom were students at the school. Eventually, the Snapchat posts were sent to the school’s cheerleading coaches by a fellow cheerleader. The coaches removed the student from the cheerleading team for violating team and school rules.

The student sued the school district, asserting that her suspension violated the First Amendment, the school and team rules she allegedly violated were overbroad and viewpoint discriminatory, and the rules were unconstitutionally vague. A federal district court in Pennsylvania and the appellate court agreed, holding that (1) the student’s speech was off-campus speech that was entitled to First Amendment protection, and (2) the student did not waive her free speech rights when she agreed to certain school and team rules.

The appellate court found that the Snapchat postings constituted protected off-campus speech not subject to regulation under Tinker v. Des Moines Independent Community Unit School District (the landmark U.S. Supreme Court case, which held that a school may prohibit student speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school”) or under any other subsequent cases that identified limited exceptions to Tinker’s substantial-disruption standard. Rejecting a general “nexus” test used by other  courts, the appellate court noted that a student’s online speech is not rendered on-campus speech simply because it relates to the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment. The appellate court further held that Tinker is inapplicable “to off-campus speech, that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”

In addition, the appellate court rejected the school’s contention that the student waived her First Amendment right to post the Snapchat when she agreed to certain school and team rules. In particular, the court found that the school’s “Respect Rule” only applied at games, fundraisers, and other events; the school’s “Negative Information Rule” did not apply to expressions of opinions or emotions; and the school’s “Personal Conduct Rule,” the language of which was too dependent on the whims of school officials, applied only during the sports season—here, the cheerleading season had not yet started.

While the U.S. Court of Appeals for the Third Circuit does not have jurisdiction over Illinois, this decision is the first to categorically hold that a school may not censure a student’s off-campus speech based on a fear that such speech substantially disrupts school activities. It is possible that other courts, such as courts that have jurisdiction over Illinois school districts, could adopt the Third Circuit’s approach and decide that once a student leaves school grounds (and is not at a school sponsored or supervised event), districts lose their ability to impose discipline upon a student for his or her off-campus speech, no matter how lewd or profane, unless that off-campus speech materially and substantially interferes with the operations of the schools.  Accordingly, it is imperative that school officials consult their attorneys before disciplining a student for off-campus  speech.

Contact an attorney in our Students/Special Education practice group with questions regarding this case and situations involving a student’s off-campus speech.

 

Source: B.L. by & through Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020)

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