How Mahanoy School District v. B.L.Could Affect Students’ Freedom of Speech
With the emergence of online learning and the increased prevalence of social media, the line between school and home has become so distorted that it is virtually nonexistent. This line is especially relevant to Mahanoy School District v. B.L. (2021), which has the potential to extend school jurisdiction over at-home speech. In this case, the Supreme Court will decide if the precedent set in Tinker v. Des Moines (1969), allowing schools to suppress disruptive speech, extends to speech made off campus. While school districts should have a certain level of regulation over off-campus speech that could potentially threaten the safety of students on campus, Mahanoy Area School District v. B.L. allows a level of regulation that goes too far beyond the amount of control schools should have over student’s off-campus speech, substantially threatening students’ First Amendment rights. The Supreme Court should define schools’ jurisdiction over off-campus speech to include speech that has the potential to substantially affect the school environment, but profanity, the relevant speech in this case, does not fit that definition.
Facts of the Case
A student, “B.L.,” tried out for the varsity cheerleading squad but was placed on the junior varsity team for a second year. Venting her frustrations, she posted a picture on Snapchat with the caption “F*ck school f*ck softball f*ck cheer f*ck everything.” [1] Several teammates approached the cheerleading coach about B.L.’s post, and she was suspended from the team, as the coach believed the snap violated team and school rules, [2] because the contract members sign when joining the cheerleading squad states that team members must “have respect for [their] school, coaches[...and] other cheerleaders;” avoid “foul language and inappropriate gestures;” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches[…]on the internet.” [3]
B.L. sued the Mahanoy Area School District on the grounds that her suspension violated her First Amendment rights, alleging that the rules she supposedly violated were both “overbroad and viewpoint discriminatory” and “unconstitutionally vague.” [4] The district court ruled in B.L.’s favor, determining that she had not waived her constitutional rights by agreeing to the team’s rules. The U.S. Court of Appeals for the Third Circuit affirmed the ruling in favor of B.L. [5] Mahanoy School District appealed the decision to the Supreme Court, presenting the following question:
Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), 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. [6]
After Tinker, courts faced the question of whether the schools’ authority to regulate speech extends to off-campus speech that could disrupt the school environment, an issue that has become increasingly important with the rise of social media. Previously, all courts faced with this issue had ruled that schools did have the jurisdiction to discipline off campus speech, but the circuit court in Mahanoy Area School District v. B.L split from the decisions of the other circuits, creating a division that only the Supreme Court could resolve. [7] The Third Circuit gave three reasons for disregarding the precedent set by their sister circuit courts: first, “bad facts make bad law,” so the complicated fact patterns tie the precedent too closely to the specific cases; second, the courts “sweep far too much speech into the realm of schools’ authority,” creating dangerous potential for violations of students’ First Amendment rights; and, third, the assumption that social media expands Tinker’s precedent off-campus is not acceptable. [8] The Supreme Court’s decision in this case has the potential to extend the precedent of Tinker by expanding schools’ jurisdiction to include off campus speech.
Physical Location
The central question at the heart of this case is about location: does the school have the ability to punish speech that occurs somewhere other than the school’s campus? The case of Tinker v. Des Moines is primarily known for how it affirmed First Amendment rights in public schools, establishing that school officials could suppress speech that “materially and substantially interfere[s]” with the day to day operations of the school. [9] This precedent was extended to include off-campus speech at the Circuit Court level until the circuit split on Mahanoy v. B.L..
In the case of Bell v. Itawamba County School Board (2015), a student posted a supposedly threatening message toward a coach on social media, which was determined to be in the schools’ jurisdiction to suppress. [10] The Fifth Circuit Court of Appeals ruled that “off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher” fits the standard of speech that the school has the ability to suppress under Tinker. [11] Bell’s precedent extends Tinker's ability to suppress disruptive speech outside of the school building on the basis that it is “directed intentionally at the school community.” [12] The court recognized the threatening nature of the speech in Bell and the fact that, when this content was posted online, the students knew that it would reach the school environment. Therefore, Bell establishes that speech made off campus is under the jurisdiction of the school if it is directed toward the school and has the potential to disrupt the school.
Bell v. Itawamba County School Board establishes that speech made off campus is under the jurisdiction of the school to suppress if it is directly related to the school, which was defined by the fact that the speech in that case was posted on social media with the knowledge that it would reach the school environment. In the case of Mahanoy County School District v. B.L., the student also published her speech on social media, Snapchat, to about 250 friends, many of whom went to her school. Technically, the content of her speech was related to school in that she wrote “f*ck school f*ck cheerleading,” but the speech itself did not have the potential to substantially disrupt the school environment, as it was not threatening or harassing anyone. [13]
This distinction between home and school has become increasingly blurred with the emergence of social media and virtual learning, which complicates discussions of “on-campus” and “off-campus” speech. Students no longer enter the physical school building—they merely click a link to an online platform for video learning. This complicates the physicality argument significantly; for example, if a student were to use profanity in the middle of a virtual class, would it be considered “on-campus speech” because they spoke over the virtual learning platform? Would the judgement be the same if the student were to type speech against the school's rules in the Zoom chat or send it via text messages to friends during class? In this way, the reality of online learning complicates the on-campus/off-campus standard for speech regulation. However, there seems to be a distinction between whether a student’s speech is made in the virtual classroom for the teacher to hear or read in the public chat, disrupting the environment of the entire classroom, versus made privately to friends over private messaging devices not affiliated with the school’s learning platform. This critical difference, whether the speech actively disrupts the learning environment and affects the norms the school has established for appropriate speech, can be used to understand the limitations of schools’ regulation of speech in both the online platform and the physical classroom.
Type of Speech
The type of speech central to this case is profanity, which is not, in itself, potentially harmful or disruptive to students. In Bethel School District v. Fraser, the Supreme Court extended the ability of the school to suppress speech by ruling that schools have the ability to suppress and punish the use of profane, vulgar, lewd speech because it does not align with “fundamental values of public school education.” [14] The precedent of Fraser, like Tinker, only applies to on-campus speech. During the school day, it could be disruptive of the school environment for a student to use profanity or other lewd language, and it is within the school’s domain to punish such language as disruptive to the school’s “day-to-day operations,” the Tinker standard. [15] Off campus or online, however, profane speech does not affect the school environment, and the mere inclusion of the words “f*ck school” in a social media post is not a sufficient threat to the school to justify the punishment or suppression of such speech made off-campus and online.
In certain instances, the school’s awareness of online posts can become a matter of student safety; for example, a student posting a bomb threat online or threatening to come to school with a gun clearly threatens the safety of the school, and these matters should be addressed by school officials and local law enforcement. In such cases, the school’s jurisdiction is not in question, as the court in Watts v. United States held that material threats are not protected by the First Amendment, [16] so threats of violence against the school or other students would be unprotected speech as well. In addition, the cyberbullying of other students should not be tolerated, and schools should have the ability to address incidents of cyberbullying between students, even if they occur off-campus, as such issues affect the school environment and relationships between students. The school environment is influenced if students are cyberbullying each other because it affects the victim’s ability to feel safe and included in school, affecting their environment. Students’ physical and mental well being should be protected above the freedom of hateful, bullying speech.
However, in the case of Mahanoy School District v. B.L., the student’s profane speech did not materially or substantially interfere with the school’s operations. It was not directed toward any student, so it was not cyberbullying, and it did not threaten anyone. B.L.’s post did not affect the school’s operations in any way, and, therefore, it should not be within the school’s domain to punish her. Admittedly, her post caused tension on the cheerleading squad, but that tension is not sufficient grounds to limit her constitutionally protected speech. It is not the school's job to suppress every speech relating to friendship tension and team drama, and this case was nothing more than that: a teammate’s voiced frustrations, and other teammates getting upset at her. B.L.’s Snapchat post merely served as an outlet for her frustration on an online platform, the same way she could have uttered this speech in her home or to her friends. The content of the speech had the same effect posted on social media as it would have if it were uttered inside one’s home —none. It did not disrupt school nor did it have the potential to harm students.
The difference in posting the speech on social media was only in cheerleading team rules—it was specifically against the team contract to post negative information “on the internet,” and the widespread nature of social media increased the ability for someone to report the violation to school officials. [17] While it was against the rules for any member of the team to post “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet,” [18] which encompasses B.L.’s snap with profanity towards cheerleading, the rule is too vague and broad of a limit by encompassing all “negative speech.” Limiting all negative speech dangerously restricts team members’ freedom of speech. This limitation is clearly overbroad, as the boundaries of what qualifies as “negative speech” are incredibly unclear—if the team is doing poorly and a member writes truthfully about the team’s performance, does this constitute “negative speech?” Should it not be within the members’ freedom of speech to express their feelings online? “Negative speech” is an overly broad term, and thus the rule greatly limits First Amendment rights of freedom of speech by encompassing all negative speech.
Lasting Implications
During the trying times of the pandemic, many students took to social media platforms to vent frustrations and find comfort in a community of mutual suffering. Students made humorous TikToks about their struggles with online learning that went viral, complained about the struggles of Zoom school to friends on Snapchat, and generally utilized online platforms as a creative outlet for a variety of forms of speech, including “negative” speech. Upholding the Mahanoy School District’s policy preventing online “negative speech” severely limits the ability of students to express themselves using their First Amendment rights, setting a precedent for school control over student speech beyond what is necessary or appropriate to regulate the school’s environment.
If the Supreme Court were to rule in favor of the school district and establish schools’ authority to regulate off-campus “negative speech,” the decision would have serious implications for students’ freedom of speech. Since Tinker’s sweeping extension of students’ freedom of speech in schools, the jurisprudence surrounding student First Amendment protections has allowed schools to become more and more restrictive of student’s freedom of speech, starting with Bell v. Itawamba County School Board, allowing schools to limit profanity, and then with Hazelwood v. Kuhlmeier, which ruled that school officials could limit school-sponsored speech if they had reasonable educational reasons for doing so. [19] By ruling in favor of the Mahanoy School District, the Supreme Court would continue the pattern of severely limiting student free speech, questioning the applicability of the First Amendment to students at all. By continuing down the current path and further limiting students’ freedom of speech, the Supreme Court sets a dangerous example for students. This teaches the wrong lesson about what it means for citizens to have the freedom of speech if schools deny this First Amendment right to students.
[1] “B.L. v. Mahanoy Area School District, No. 19-1842 (3d Cir. 2020),” Justia Law, n.d., https://law.justia.com/cases/federal/appellate-courts/ca3/19-1842/19-1842-2020-06-30.html, 5.
[2] Ibid, at 6.
[3]Ibid.
[4] Ibid.
[5] Ibid, at 44.
[6]U.S. Supreme Court Review of Petition for Writ of Certiorari in Mahanoy Area School District v. B.L., https://www.scotusblog.com/case-files/cases/mahanoy-area-school-district-v-b-l/, I.
[7] Ibid, at 3.
[8] “B.L. v. Mahanoy Area School District, No. 19-1842 (3d Cir. 2020),” Justia Law, n.d., https://law.justia.com/cases/federal/appellate-courts/ca3/19-1842/19-1842-2020-06-30.html, 28-31.
[9] “Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969),” Justia Law, accessed April 23, 2021, https://supreme.justia.com/cases/federal/us/393/503/.
[10]Bell v. Itawamba County School Board (United States Court of Appeals, Fifth Circuit. August 20, 2015).
[11] Ibid.
[12] Ibid.
[13] “B.L. v. Mahanoy Area School District, No. 19-1842 (3d Cir. 2020),” Justia Law, n.d., https://law.justia.com/cases/federal/appellate-courts/ca3/19-1842/19-1842-2020-06-30.html
[14] “Bethel School District No. 403 v. Fraser." Oyez. Accessed April 7, 2021. https://www.oyez.org/cases/1985/84-1667.
[15] “Tinker v. Des Moines Independent Community School District." Oyez. Accessed April 7, 2021. https://www.oyez.org/cases/1968/21.
[16] “Threats of Violence Against Individuals.,” Legal Information Institute (Legal Information Institute), accessed April 8, 2021, https://www.law.cornell.edu/constitution-conan/amendment-1/threats-of-violence-against-individuals.
[17] “B.L. v. Mahanoy Area School District, No. 19-1842 (3d Cir. 2020),” Justia Law, n.d., https://law.justia.com/cases/federal/appellate-courts/ca3/19-1842/19-1842-2020-06-30.html.
[18] Ibid.
[19] “What Has the Supreme Court Said about Free Expression?,” Freedom Forum Institute, accessed April 8, 2021, https://www.freedomforuminstitute.org/about/faq/what-has-the-supreme-court-said-about-free-expression/.