Supreme Court Sides With Student In First Amendment Case | Hodgson Russ LLP


In an 11-page opinion released earlier today, the United States Supreme Court examined for the first time how far a school district can go to discipline a student for an off-campus speech. The Court in Mahanoy Region School District c. BL, minor, ruled that the district had violated the student’s First Amendment rights by sanctioning her for using “vulgar language and gestures” criticizing both the school and its team of cheerleaders. Specifically, the student (BL), then a sophomore, reportedly posted a self-erasing Snapchat photo (within 24 hours) of her and a friend lifting a middle finger, captioned “f ** k school f ** k softball f ** k cheer f ** k everything. “The caption also contained an upside down smiley face emoji.

FYI, BL’s post was prompted by the fact that she learned that she was not making the school’s cheerleader team for the second season in a row, while a freshman was on the team on her first try. Apparently in frustration, BL posted the relevant message, followed by a second message that read: “I love how me and [another student] we are told that we need a year of jv before going to university but it is [sic] doesn’t matter to anyone else? ”These messages were not sent directly to the school. Rather, they were sent to other students in the district, some of whom were from the pom- pom team. At least one of these students, using a cell phone, shared photos of BL’s messages with other members of the cheerleader team, after which the images spread throughout the school. At one point, questions about the messages arose in an algebra class taught by one of the two cheerleader coaches.

Key to the court’s decision was its interpretation of its earlier and quite famous decision in Tinker v. Des Moines Independent Community School District. In Tinkering, the court ruled that a public high school could not constitutionally prohibit a peaceful political demonstration by students on school property during the school day. However, in reaching this conclusion, the Court also stated that: “The conduct of [a] pupil, inside or outside the classroom, which for whatever reason – whether it arises from time, place or type of behavior – materially disrupts the work in the classroom or involves a substantial disturbance or an infringement of the rights of others are … not immune by the constitutional guarantee of freedom of expression. “

The question the Supreme Court addressed today is whether the Tinkering the standard applies to off-campus speech. The court, ruling in favor of the student and without detailing a list of cases, essentially concluded that a school can discipline a student for off-campus speech. But the court quickly added that the circumstances under which a school can impose such discipline are severely limited by three factors. The first is whether the school acts or would act in loco parentis. In this regard, the Court declared: “[g]Geographically speaking, off-campus speech will normally be a parental responsibility rather than an academic responsibility. Second, the Court said that “[w]When it comes to political or religious discourse that takes place outside of school or a school program or activity, the school will have a heavy burden to justify the intervention. The third factor was considered “a school’s interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.”

Applying these limiting standards to BL’s speech, the court concluded that there was nothing in it that would place it outside the protection of the First Amendment. The messages did not contain “belligerent language” nor were they “obscene”, as the Court previously defined these terms. The court also found it significant that the messages were posted outside of school hours, did not target any student, and were transmitted via BL’s personal mobile phone to a private circle of friends. While the Court also recognized that there was some risk that the student’s transmission would end in school (which it did), that risk was insufficient in the circumstances to warrant sanctioning the student for doing it.

Carry: As Judge Alito states in his concurring opinion: “If today’s ruling teaches a lesson, it is that the regulation of many types of student speech outside the school raises serious concerns about the First Amendment, and school officials should proceed with caution before venturing into this territory. “


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