Students and Social Media – Can Schools Discipline Students for Off-Campus Speech?
Students and Social Media – Can Schools Discipline Students for Off-Campus Speech?

With an estimated 3.96 billion social media users worldwide, it is no surprise to learn that most students have at least one social media account.  Whether it is Facebook, Snapchat, Instagram, or TikTok, people of all ages, from your 85 year-old grandmother to your 7 year-old nephew, can be found sharing their life somewhere on a social media platform (and possibly, your life too!).  In 2021, it appears acceptable to share all types of information, from the tiniest of details, such as what you ate for lunch or your newest dance moves, to more controversial items, such as political and religious beliefs.  People share the details of their everyday lives with friends, family, and strangers.  For many social media users, their first inclination is to “post” about any experience they have just encountered - the good, the bad, and the ugly, with their closest “friends.”  In a world where posting or snapping about any thought instantaneously occurs, when is sharing an opinion or criticism too much, and who decides when enough is enough?  This is the question the U.S. Supreme Court recently reviewed in Mahanoy Area School District v. B.L. By and Through Levy (2021) _ _ _ U.S. _ _ _ 2021 WL 2557069, when the Court reviewed whether school officials had the right to regulate or punish a student for her off-campus, social media speech.

One Saturday afternoon, Mahanoy Area High School freshman, B.L., was frustrated when she learned she did not make the varsity cheerleading squad; she was instead offered a position on the junior varsity cheerleading squad.  Adding to her frustration, an incoming freshman had been selected to the varsity squad and B.L. also did not get the positon she was hoping for on a private softball team unaffiliated with her high school.  Upset and emotional, B.L. posted about how she was feeling.  Specifically, B.L. posted two photos to her Snapchat account, one of which contained what would later be described as “vulgar language and gestures.”  The “vulgar” photo showed B.L. and her friend with their middle fingers up.  The caption read, “F**k school f**k softball f**k cheer f**k everything.”

A member of the cheerleading squad who was B.L.’s Snapchat “friend,” saw the post and showed it to her mother, an assistant coach on the cheerleading team.  Because the post used profanity in connection with a school extracurricular activity, the cheerleading coaches suspended B.L. from the junior varsity team for the upcoming year.  Despite B.L.’s apologies, school officials upheld the suspension.  B.L. sought relief in federal court arguing that by suspending B.L. from the cheerleading squad for her off-campus post, the school violated her First Amendment rights.  B.L. won.

The District Court and the U.S. Court of Appeals for the Third Circuit, in ruling in favor of B.L., held that the standard in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503, providing that “schools have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasions of the rights of others,” did not apply to off-campus online student speech.  The Third Circuit also held that even if Tinker did apply, and the school could regulate off-campus online speech, B.L.’s Snapchat posts did not rise to the level of a “substantial disruption” permitting censorship or discipline.

In reviewing the decision, the U.S. Supreme Court upheld the outcome of the Third Circuit decision that the decision to suspend B.L. based on her social media post while off-campus violated the First Amendment.  However, in the 8-1 decision, the Court reached that conclusion on an entirely different rationale.  The Court disagreed with the prior holding that Tinker does not apply to any off-campus speech, stating they “do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off-campus.”  (Emphasis added.)  The Court emphasized that the school’s regulatory interests remain significant in some off-campus circumstances, including those that involve “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices,” which were not present in the current case.

While the Court did not “set forth a broad, highly general First Amendment rule” governing all off-campus speech, it mentioned three features of off-campus speech that make it less likely that schools have a lawful interest in regulating it.  Specifically:

  1. A school rarely stands in loco parentis (i.e. stand in the place of parents) when a student speaks off campus.
  2. From the student speaker’s perspective, if schools can regulate off-campus speech, all the speech a student utters during a 24-hour day will be regulated.
  3. The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.

The Court stated, “Taken together, these three features of much off-campus speech mean the leeway the First Amendment grants to schools in light of their special characteristics is diminished.  We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”  While the school had interest in teaching good manners and punishing the use of vulgar language, this interest was weakened by the fact that B.L. spoke off-campus, on a Saturday afternoon under circumstances where the school did not stand in loco parentis (i.e. in the place of the parents).  Further, she did not identify the school in her posts or target any member of the school community with vulgar or abusive language.  Her post was created using her personal cellphone, and the post was only accessible to 250 of her private Snapchat friends.  .

Disruption to school, which included a 5-10 minute discussion of the matter in a math class “for a couple of days” and that other members of B.L.’s cheerleading team were “upset,” by the posts, did not result in a substantial disruption under Tinker.  Ultimately, the Court held, “While public schools may have a special interest in regulating on-campus speech, the special interests offered by the school are not sufficient to overcome B.L.’s interest in free expression in this case.”  The Court determined the school violated B.L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad, stating that B.L.’s Snapchat posts reflect “criticism” and did not “involve features that would place it outside of First Amendment protection.” 

Prior to the Supreme Court’s ruling on the Mahanoy case, the Tinker test, developed long prior to the current digital world, has been used by school districts in deciding whether school officials may regulate student speech, focusing on whether they had a special interest in regulating speech by identifying whether the speech “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”

The Mahanoy case is a step toward determining whether students hold free speech rights to post to their social media accounts and not be disciplined by their school district.  It required considering when and how a post is made, not only when the speech is viewed by others.  The Court did not provide clarification or a bright-line rule as to when a school district can regulate off-campus speech on social media platforms.  The Mahanoy decision confirms that school districts have a right to govern some social media student speech that takes place off-campus.  Although the Court specified a few off-campus circumstances where student speech may be regulated, school districts should consider the three features established by the Court in Mahanoy that diminish the school district’s interest in regulating speech.  However, because of the fact-specific analysis in Mahanoy, school districts will have to wait on future cases to provide a clear explanation of “where, when, and how” off-campus speech carried out on social media may be regulated.

School districts should review their student discipline policies to clarify parameters for when the school may intervene in student speech on social media.  Further, in teaching digital literacy, it is important to remind students that, even when “private,” the information they put on social media platforms becomes part of their own digital footprint and may have significant impacts on their future.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2021 Atkinson, Andelson, Loya, Ruud & Romo

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