by Sean Clough | In an 8-1 decision, the United States Supreme Court ruled in Mahanoy Area School District v. B.L that public schools can discipline students for speech made while not at school in a limited number of circumstances.

The opinion, delivered by Justice Stephen Breyer, refused to provide a list of certain off-campus student speech that could or could not be disciplined, but did provide some guidelines for school districts to consider.

As discussed in a previous blog post, the Mahanoy Area School District case involved the school’s disciplining of a sophomore junior-varsity cheerleader who, while off school grounds on a Saturday morning, sent a vulgar Snapchat image with the text “F&@! Cheer” to her 250 friends causing some students to become visibly upset and disrupting classroom time.

The Court grounded its analysis by looking at the When, Where, What, and How of the speech and balancing that against the school’s interest in restricting such speech.

  • What was said? While the speech was a vulgar critique of the school, it was the type of criticism that would normally be protected under the First Amendment. The speech would not amount to fighting words and, although vulgar, was not so obscene that it was not deserving of First Amendment protection.
  • When and Where was it said? The student’s Snapchat post originated outside of school hours while she was physically off the school campus. The school was not “in the shoes” of the parents during the time in which the student made and sent the post.
  • How was it said? This speech did not target, harass, or bully another person and was transmitted through the student’s personal cellphone, not a school laptop or any other school electronic device.
  • Schools Interest in Teaching Good Manners. The Court found that the school’s interest in teaching good manners was diminished because the speech was delivered during non-school hours and therefore, parents – not the school – were the ones charged with inculcating good manners.
  • School’s Interest in Preventing Substantial Disruption. The Court found that the alleged disruption of the school day amounted to 5 to 10 minutes of class disruption and that some members of the cheerleading team were upset. This disruption was insufficient to warrant discipling the student’s speech. The Court reminded the school that its desire to discipline student speech must be grounded in more than just “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

When balancing the above aspects of the student’s speech with the stated interests of the school within this case, the Court held that the school could not discipline the student.  The bottom line for administrators is that the Court does acknowledge circumstances when a public school could discipline off campus speech. However, the school’s interest in doing so must be very strong and the student’s speech must be of such a character that it is considered harassment, bullying, or otherwise targeting a particular member of the school community and not a general critique of the school or its programs.

When confronting the possibility of discipling off-campus student speech it is important to use best judgment and make sure that the school has an important interest in doing so.  If in doubt, consult legal counsel.  If you have any questions or would like to discuss further, contact Sean Clough or any of our Education & Municipal Law team here.

clavin June 29, 2021 No Comments BRCSM Insights

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