Mahanoy Area School District v. B.L.

Issues 

Can a school regulate student speech that may be disruptive to the school environment if that speech occurs off campus?

Oral argument: 
April 28, 2021

This case asks the Court to decide whether school officials may regulate and punish students for disruptive speech that occurs off the school campus. Petitioner Mahanoy Area School District argues that schools can regulate speech that is directed at school operations and which causes off-campus harm under Tinker v. Des Moines Independent Community School District, even when that speech is made off campus. Respondent B.L. counters that schools only have the authority to regulate students’ speech when that speech is made on the school campus or under the supervision or sponsorship of the school, not merely because the speech’s topic has some relationship to school functions. This case has implications for the extent of students’ free-speech rights and schools’ ability to prevent off-campus bullying.

Questions as Framed for the Court by the Parties 

Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Facts 

Respondent B.L., a student at Mahanoy Area High School (“MAHS”), tried out for the cheerleading team during her freshman year of high school and made the junior varsity (“JV”) squad. B.L. v. Mahanoy Area School District at 1. She tried out again as a sophomore and was again assigned to JV. Id. B.L. was especially frustrated after failing to make the varsity squad a second time when she saw that a freshman had been promoted to the varsity team instead. Id. Frustrated by her relegation to the JV squad, school exams, and struggles on her softball team, B.L. posted a picture of herself and her friend with their middle fingers raised, with the caption “Fuck school fuck softball fuck cheer fuck everything” on her Snapchat story. Id. B.L. subsequently added another post to her Snapchat story, with the caption “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?” Id.

Several students expressed concerns about B.L.’s posts to MAHS’s cheerleading coaches. Id. at 2. The coaches told B.L. that her post violated team and school rules, including rules mandating that cheerleaders show respect towards the team and others, refrain from posting “negative information” about cheerleading on the internet, and behave in a way that does not harm the image of the Mahanoy Area School District. Id. at 2, 16, 17. Consequently, the coaches removed B.L. from the JV cheerleading team. Id. at 2. B.L. and her parents appealed to school authorities to reinstate B.L. on the cheerleading team, but the authorities upheld the coaches’ decision to suspend B.L. Id.

B.L. and her parents then sued Petitioner Mahanoy Area School District (“Mahanoy”) in the United States District Court for the Middle District of Pennsylvania. Id. B.L. made three arguments: first, that her suspension from the cheerleading team violated the First Amendment, second, that the school rules she was accused of breaking were unacceptably broad and discriminated against certain viewpoints, and third, that the school’s rules were unconstitutionally vague. Id. The district court granted B.L. summary judgment, ruling that the school district could not regulate B.L.’s Snapchat post as it was off-campus speech, and that the snap had not caused a “substantial disruption of the school environment.” Id. Consequently, the district court held that the school district violated B.L.’s First Amendment rights. Id.

Mahanoy subsequently appealed to the United States Court of Appeals for the Third Circuit. Affirming the district court’s opinion, the appellate court decided that B.L. did not waive her First Amendment rights by agreeing to abide by school rules, and that her post was fully protected by the First Amendment. Id. at 16. Mahanoy then appealed to the Supreme Court.

Analysis 

SHOULD OFF-CAMPUS SPEECH BE REGULATED ON SCHOOL CAMPUSES?

Mahanoy Area School District (“Mahanoy”) argues that historically, schools have had authority to regulate off-campus behavior that disrupts school operations; Mahanoy notes that public schools share authority with parents to regulate student conduct and exercise “near-plenary authority over student discipline.” Brief for Petitioner, Mahanoy Area School District at 13–16. Mahanoy, agreeing with the Court’s decision in Tinker v. Des Moines Independent Community School District, acknowledges that public schools do not possess absolute authority over students and that students possess First Amendment speech protections at school so long as the students’ expression does not become substantially disruptive to the proper functioning of school. Id. at 16. Mahanoy insists, however, that the Court intended for Tinker to extend beyond the schoolhouse gates and include not just on-campus speech, but any type of speech that was likely to result in on-campus harm. Id. at 17–18.

Mahanoy further argues that the Court’s post-Tinker decisions support regulation of off-campus speech that causes on-campus harm; Mahanoy explains that in Grayned v. City of Rockford, the Court held that a city could punish an adult protester for expressive conduct that occurred off campus, but was audible and visible from school grounds and capable of disrupting school order. Id. at 18. From this, Mahanoy reasons that if adults can be punished for off-campus conduct that disrupts school operations, then schools and municipalities should be able to punish their own students for similar off-premise conduct. Id. Further, Mahanoy argues that the Court has allowed schools to enforce broader restrictions on student speech where the restrictions relate to protecting certain pedagogical purposes. Id. at 19. Mahanoy explains that in Bethel School District No. 403 v. Fraser, the Court allowed for a school to punish a student for using vulgar language even though the student caused no substantial disruption specifically because the school had an interest in teaching students socially acceptable behavior. Id. Mahanoy further points to another case, Morse v. Frederick, where the Court allowed schools to discipline students who advocate for illegal drug use when the speech occurred at a school event because schools have a unique interest in teaching students the dangers of illegal drug use. Id. Further, Mahanoy contends that schools already have authority to regulate off-campus activities in furtherance of pedagogical goals, particularly through homework, summer reading assignments, discussion of test answers with peers, and group project communications. Id. at 19–20. Therefore, Mahanoy argues, if schools can regulate this off-campus conduct and speech that does not have a harmful impact on the school, then it would follow that schools should be permitted to regulate off-campus conduct that does harm school operations. Id. at 20.

B.L. counters that Tinker was meant to act as a narrow exception to First Amendment principles and only meant to apply to speech that occurs on school grounds, at school-related events, or on the way to and from school. Brief for Respondent, B.L. at 11. B.L. arrives at this conclusion by noting that Tinker “plainly distinguishe[d]” on-campus and off-campus speech when it used the explicit language of “at the schoolhouse gate.” Id. at 13. B.L. further posits that young people must have full First Amendment rights outside of school because Tinker’s reasoning rested on, and was limited to, the uniqueness of the academic environment in public schools. Id. Quoting Morse, B.L. maintains that the Court’s jurisprudence in school-speech cases has always rested on the notion that the schools’ ability to restrict speech within schools rests against the backdrop that “the government could not censor similar speech outside the school.” Id. at 14. B.L. illustrates its argument further by comparing two additional cases: Hazelwood School District v. Kuhlmeier and Papish v. University of Missouri Board of Curators. Id. at 15. In the first case, B.L. explains, the Court held that official school newspapers could censor student speech on the basis of content while, in the second, the Court reasoned that schools could not censor student in underground newspapers distributed on campus because the newspaper was produced independent of the school. Id. Additionally, B.L. asserts that Tinker’s rationale only works specifically because off-campus speech was left untouched, which left open ample “alternative channels” for free speech. Id. at 17.

B.L. contends that expanding Tinker to off-campus speech that occurs outside the supervision or sponsorship of the school would make the substantial-disruption standard unconstitutionally vague because it would premise a student’s liability on the subjective reaction of those in charge—to wit, the standard would effectively be swallowed whole by allowing punishment of practically anything. Id. at 17–18. B.L. thus takes issue with Mahanoy’s assertion that schools may act “in loco parentis,” or in the place of a parent, even outside the school gates because allowing such regulation abrogates the constitutional right of parents to decide the manner in which to raise their children. Id. at 18. After all, B.L. maintains, it is not the duty of the government to impose restrictions on any First Amendment principle—including speech and religion—simply based on what it believes a reasonable parent “ought to want.” Id. at 18–19.

ARE DOCTRINES OUTSIDE OF THE FIRST-AMENDMENT RELEVANT TO THE ISSUE OF SCHOOL SPEECH?

Mahanoy contends that doctrines outside the First Amendment, but closely related to it within the school-context, support linking off-campus speech to on-campus harm. Brief for Petitioner at 23. Mahanoy explains that when a teacher speaks on a matter of public importance and that speech does not disrupt school functions, then the teacher’s speech is likely protected; therefore, off campus speech by teachers is regulated not by location of the speech, but rather, its substance. Id. Similarly, Mahanoy argues that under the Fourth Amendment, schools may conduct random and suspicion-less drug testing not because there is a fear of on-campus drug use, but because there is a fear that off-campus drug use could negatively impact activities on campus, such as academic and extracurricular performance. Id. at 24–25. Additionally, Mahanoy references how the governments’ authority to tax extra-jurisdictionally, prosecute the conduct of military personnel in civilian jurisdictions, and penalize after-hours sexual harassment by employers does not relate to the location of where the regulated conduct occurred but instead on the effect it has on the governments’ operations. Id. at 25–26. Mahanoy believes the Court’s personal jurisdiction test to be instructive on this matter in that states may not exercise personal jurisdiction over an out-of-state defendant if the defendant did not intentionally direct their conduct to the relevant state. Id. at 27–28. Thus, Mahanoy argues, if a student intentionally directs her speech at school operations, the school should be able to regulate that speech so long as it was reasonably foreseeable that the speech would impact the school. Id. at 28–29.

B.L. contends that much of Mahanoy’s reasoning comes from closely related doctrines because the school-speech doctrine naturally does not support Mahanoy’s argument. Brief for Respondent at 28. B.L. counters Mahanoy’s reference to the Court’s personal jurisdiction and out-of-state taxation doctrines by noting that those analogies are irrelevant to the case at bar because B.L. concedes that schools have the ability to regulate some off-campus conduct and instead posits that the issue rests on the correct standard schools should follow. Id. at 29. B.L. maintains that the intentionally direct and reasonably foreseeable requirements proposed by Mahanoy’s adaptation of law on personal jurisdiction would unnecessarily give schools the ability to regulate any student speech posted online so long as the speech is broadcasted to another student. Id. at 33–34. Further, B.L. contends that Mahanoy’s comparison of the speech rights of public employees to those of students is misplaced based on the well-settled holding that the government has broader discretion to censor speech as an employer than as a sovereign. Id. at 30. Additionally, B.L. believes the distinction between public employees and students is obvious because teachers who speak using the platform of their office (i.e., within the classroom) are always speaking as a public employee and subject to more restrictions whereas students who speak within the classroom, or anywhere on school grounds, are not so limited. Id. at 31. Further, B.L. argues, students are not limited in their capacity to speak on issues off-campus—while a public school teacher might be limited to speaking about matters of public concern as Mahanoy suggests, students have no such limitation. Id. B.L. further contends that Mahanoy’s comparison to the military solidifies the weakness of Mahanoy’s argument because the Court’s repeated analysis on military discipline illustrates that “the military demands discipline unlike anything in civilian society,” thus making it unlikely that underage children should be held to a similar standard for speech in public school. Id. at 31–32.

Discussion 

HOW MUCH SCHOOL CONTROL IS ACCEPTABLE?

The Huntsville, Alabama City Board of Education and eleven additional Alabama school districts (“Alabama Districts”), in support of Mahanoy, argue that granting schools authority to police some off-campus speech does not grant them unlimited control over all off-campus speech. Brief of Amici Curiae Alabama Districts, in Support of Petitioner at 6. The Alabama Districts point out that courts have narrowed schools’ power to regulate off-campus speech by several conditions: whether it is reasonably foreseeable that the speech will disrupt the school environment; whether the speech has a sufficient nexus to school and education; and whether the speech is directed at the school community. Id. at 6. By eliminating consideration of these conditions and heavily restricting schools’ power to regulate off-campus speech, the Alabama Districts contend, the Third Circuit has prevented educators from exercising reasonable discretion to determine whether a student’s speech is appropriate, and forces them to guess whether questionable speech occurred on or off campus. Id. at 8. The Alabama Districts further argue that previous cases have not granted schools unlimited police power over student speech, but rather allow for a balance between free-speech rights and the maintenance of an effective pedagogical environment. Id. at 9.

In contrast, the American Center for Law and Justice (“ACLJ”), in support of neither party, contends that allowing schools to regulate off-campus speech would constitute an unnecessary and overbroad assertion of power over student lives. Brief of Amicus Curiae ACLJ, in Support of Neither Party at 8. Schools are not the only institutions with the power to monitor and punish children’s misbehavior, the ACLJ argues; plenty of non-school adults, including parents, have roles to play in regulating children’s behavior, and there are extensive law enforcement measures available to address extreme misbehavior. Id. at 9–10. Further, the Pacific Legal Foundation (“PLF”), the Cato Institute, and P.J. O’Rourke (“PLF et al.”), in support of B.L., assert that diminishing police and parental authority by granting schools such extensive power over students undermines the purpose of the First Amendment. Brief of Amici Curiae PLF et al., in Support of Respondent at 4. According to PLF et al., placing this power in the hands of schools creates a culture in which listener disapproval creates a basis for restricting speech—a culture inconsistent with the values of the First Amendment. Id. at 10–11.

IMPLICATIONS FOR SCHOOLS’ ABILITY TO CURTAIL OFF-CAMPUS BULLYING

The Cyberbullying Research Center and other organizations (CRC et al.), in support of Mahanoy, asserts that allowing the Third Circuit’s ruling to stand will severely impair schools’ ability to curtail bullying that occurs off campus. Brief of Amici Curiae CRC et al., in Support of Petitioner at 12–13. Bullying, CRC et al. explain, causes significant harm to already-marginalized groups of students, and schools must be able to regulate bullying that occurs outside of school in order to protect student welfare. Id. at 4–7, 18. Mahanoy contends that the Third Circuit’s ruling would undermine schools’ ability to ensure that students or teachers are not harassed at extracurricular functions occurring off school grounds. Brief for Petitioner, Mahanoy Area School District at 12, 22. Massachusetts and other states (“Massachusetts et al.”), also in support of Mahanoy, further explain that schools must be able to intervene when bullying causes harm to students. Brief of Amici Curiae Massachusetts et al., in Support of Petitioner at 20. Limiting disruptive bullying speech, Massachusetts et al. argue, does not constitute a restriction of students’ First Amendment free speech rights. Id. at 22.

On the other hand, the National Women's Law Center and additional organizations (“NWLC et al.”), in support of B.L., contend that a ruling in B.L.’s favor would not dismantle schools’ authority to punish off-campus bullying, nor should it. Brief of Amici Curiae NWLC et al., in Support of Respondent at 7. However, according to NWLC et al., a rule allowing schools to regulate all off-campus speech that may cause a “substantial disruption” to the school environment extends far beyond the realm of bullying. Id. at 20. NWLC et al. asserts that under such a rule, students in historically marginalized groups would be more likely to be disciplined for “disruptive” behavior due to racial or other forms of discrimination. Id. at 25–26. Further, NWLC et al. argue, such an overbroad rule would infringe on the rights of students to organize and protest against harmful aspects of the school environment—conduct that would otherwise enjoy constitutional protection. Id. at 25.

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