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SCOTUS Rules for Cheerleader in Off-Campus Speech Case
In a landmark decision issued June 23, 2021, the U.S. Supreme Court ruled (8-1) that the First Amendment’s speech clause protected profane Snapchats sent by a high school cheerleader from her personal phone to her friends while off-campus and outside school hours. Accordingly, the school could not discipline her for the messages, which are protected speech. Mahanoy Area Sch Dist v BL, 594 U.S. ___ (2021). The Court did not rule, however, that schools may never discipline students for off-campus speech.
Upon learning that she did not make the varsity cheerleading squad, BL posted a Snapchat story, visible to her Snapchat “friends” for 24 hours, that included profane language and gestures and stated, in part, “f--- school, f--- cheer.” A friend took a screenshot of the post and gave it to the coaches, who suspended BL from the cheerleading team for a year for violating team rules. BL sued the school, claiming that the suspension violated her First Amendment right to free speech.
The school argued that the discipline was justified because it: (A) has an interest in “teaching good manners” and prohibiting profane student speech; (B) was trying to prevent a substantial disruption to school operations, as permitted by the Tinker standard; and (C) was concerned about the cheerleading team’s “morale.” The Court rejected the school’s arguments.
The Court first found that because BL’s speech occurred off-campus during the weekend, when she was presumably under her parents’ control, the school was not standing in loco parentis. Because the school did not have responsibility for the student over the weekend, it had no obligation during that time to teach her good manners. Second, there was no evidence that BL’s messages created a substantial disruption as required by Tinker because BL’s Snapchats were discussed for only 5-10 minutes in class for about a week and only some cheerleaders were “upset.” Finally, no evidence suggested that the team’s morale declined. Quoting Tinker, the Court noted that “’undifferentiated fear or apprehension . . . is not enough to overcome the right to freedom of expression.’”
While not providing any blanket rules, the Court identified examples of off-campus student speech for which school officials may, depending on the circumstances, be authorized to impose discipline. Those include:
- Serious or severe bullying or harassment targeting particular students;
- Threats directed at teachers or other students;
- Failing to follow rules about lessons, the writing of papers, the use of computers, or participating in other online schooling activities; and
- Breaching school security devices.
Finally, in considering whether discipline for off-campus speech is permissible, the Court identified “three features” that school officials should carefully consider:
- For off-campus speech, the school “will rarely stand in loco parentis;”
- Courts should be more skeptical of schools regulating off-campus speech, especially off-campus religious or political speech, because regulating off-campus speech means all of a student’s speech in a given day can be regulated by the school; and
- Schools have an interest in protecting a student’s unpopular expression, “especially” when that speech occurs off-campus.
Ultimately, the Court found that BL’s speech was protected by the First Amendment because she was criticizing her team, coaches, and the rules. Importantly, BL’s speech did not mention her school or target a member of the school community. Rather, the speech occurred outside of school hours, off school grounds, and did not create a substantial disruption.
Although this decision provides some leeway for a school to discipline students for off-campus conduct, school officials should tread carefully. Put succinctly by Justice Alito in his concurring opinion: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”