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Off-Campus Speech

Posted by ANDREA E. WHITE | Jul 12, 2021 | 0 Comments

PROCEED WITH CAUTION:  UNITED STATES SUPREME COURT ISSUES OPINION ADDRESSING WHETHER SCHOOL DISTRICTS MAY LAWFULLY DISCIPLINE STUDENTS FOR OFF-CAMPUS SPEECH

For years, public school districts have grappled with the question whether a student may lawfully be disciplined for off-campus speech, particularly when that speech is made via social media using platforms such as Facebook, Instagram, and Snapchat.  In late June, the United States Supreme Court, in an 8 to 1 decision with Justice Clarence Thomas dissenting, held in the case of Mahanoy Area School District v B.L. that while public school officials may discipline students for certain off-campus speech, the circumstances under which such misconduct occurs are vital in determining whether a student's right to freedom of expression under the First Amendment has been violated.

The Mahanoy case first arose in 2017, when a Pennsylvania high school suspended a female student from the junior varsity cheerleading squad for one year.   The student (B.L.) was suspended following an incident in which she posted images to her Snapchat account regarding her negative feelings about the cheerleading squad.  The posts in question, which B.L. sent from her personal cell phone while visiting a local convenience store, contained multiple uses of vulgar language (the “f” word) and also expressed B.L.'s frustration with the fact she was not selected for the varsity cheerleading squad when she tried out as a sophomore.  Significantly, B.L.'s post did not identify the school she attended nor did it name any school officials or students.  B.L. sent the Snapchat images to her circle of “friends” on Snapchat, at least one of whom took a screenshot of the images and shared them with other cheerleaders.

After B.L.'s cheerleading coach and school administrators learned of the offensive posts, B.L. was suspended from the squad.  Her parents subsequently filed suit and, ultimately, the US Supreme Court agreed to hear the case.

In assessing whether the school violated B.L.'s First Amendment rights by removing her from the cheerleading squad, the Court first reiterated the difference in a school district's right to regulate student speech occurring on school grounds or at a school-sponsored activity with speech that occurs entirely off school grounds, after school hours, and is made using a student's personal technology.  Finding that when a student is away from school, school officials do not stand in loco parentis as far as the right to control and discipline a student for misconduct, the Court set forth three aspects of off-campus speech that school officials must consider when deciding whether to discipline a student for misconduct.

First, school officials must remember that their jurisdiction over a student is limited when the student is away from school.  Two, students are entitled to the same First Amendment rights as adults, particularly when their speech occurs entirely off school grounds and does not result in a serious disruption to the learning environment or target specific individuals with threats or obscene language.  Finally, describing schools as “nurseries of democracy,” the Court stated that school districts have an interest in protecting a student's right to express an unpopular opinion.

Importantly, the Court acknowledged that, in those cases where a school presents substantial evidence of a material disruption to the learning environment, school officials do have the right to discipline a student for off-campus speech.  While not providing specific guidance on this issue, the Court cited to cases around the country where school districts have lawfully disciplined students for off-campus speech, such as where the speech contains a threat to the school or to a specific individual or advocates illegal activity.

In its opinion, the Court states several times it decided the Mahanoy case based upon the specific facts presented and that further guidance will have to be provided by future suits.  Based on the fact the school in Mahanoy did not present evidence of a serious disruption, other than citing to a short discussion about B.L.'s posts in an Algebra class and several cheerleaders being upset, the Court found that B.L.'s First Amendment right to express her opinion, albeit in a crude and vulgar manner, trumped the school's right to discipline her.

For many years, schools around South Carolina have disciplined students participating in extracurricular activities for off-campus speech where that speech is vulgar or profane on the basis that participation in such activities is voluntary and that, in agreeing to participate, students and parents/guardians agree to abide by a written Code of Conduct.  However, in Mahanoy, the Court made no distinction between a suspension from school and a removal from an athletic team.  Consequently, schools are going to have make such decisions based upon a case-by-case determination whether the student's off-campus speech presents a material disruption and/or targets specific individuals with obscenity or threats.

Moving forward, districts should review their policies and procedures regarding discipline for off-campus misconduct.  Further, before removing a student from an athletic team for off-campus speech, school officials should ensure that the speech in question has created a material disruption as documented by statements from students and school employees.

If you have questions about this topic or would like to schedule student discipline training in your district, please feel free to contact our office.

About the Author

ANDREA E. WHITE

Andrea E. White has a Bachelor of Arts in English from Clemson University (1984) and a J.D. from the University of South Carolina School of Law (1988). She is a member of the Richland County Bar and the South Carolina Bar. Representing a number of school districts around South Carolina, Andrea...

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