Can a school punish a student for online speech off campus?

A U.S. school district wants the Supreme Court to overturn a landmark free speech case and let it punish a student for criticizing her school online.

Can a high school punish a student for a social media post criticizing the school that is published off campus?

That’s a question a Pennsylvania school board has asked the U.S. Supreme Court to answer and which is becoming ever more pressing as schools resort to remote teaching during the coronavirus pandemic and digital tools make it difficult to determine when a student is at school or off campus.

The Mahanoy area school district in eastern Pennsylvania has appealed a decision in June by a federal court in Philadelphia that ruled in favor of a high school student who had posted a vulgar message on Snapchat after she was placed on the junior varsity cheerleading team instead of the varsity squad.

The student, identified as B.L. in court, had taken a photo of herself and her friend with their middle fingers raised, accompanied by the caption, “Fuck school fuck softball fuck cheer fuck everything.” The post was visible to about 250 “friends” and quickly came to the knowledge of school officials, who kicked her off the junior varsity team for a year.

In punishing B.L., the school argued that her post was disrespectful and would disrupt the cheerleading program. But while the appeals court called the post “crude, rude, and juvenile,” it sided with the girl and her parents who argued the punishment violated the student’s right to freedom of speech under the First Amendment of the U.S. Constitution.

“The consensus in the analog era was that controversial off-campus speech was not subject to school regulation,” the Pennsylvania appeals court wrote in its ruling, adding that the law needs to “adhere to that principle even as the speech moves online.”

District says a school must be able to punish disruptive online speech.

The Student Law Press Center called the ruling “a major step toward securing First Amendment rights for students in person and online when they’re off campus.”

But the Mahanoy area school district has asked the Supreme Court to overturn the lower court decision, saying five other district courts covering more than half the nation’s public schools had previously ruled that administrators could discipline students for disruptive speech off campus.

“Now, schools must redo their policies at the worst possible time,” the school district said in its petition to the Supreme Court, arguing that schools are used to regulating off-campus speech that is disruptive.

“The coronavirus pandemic has forced schools and students to increasingly move online many of the educational and social interactions that previously occurred on campus. Technology allows students of all ages to connect with each other in virtual classrooms. But that same technology acts as a megaphone for off-campus speech, ensuring that it reverberates throughout the classroom and commands the school’s attention.”

The school district noted that in the past year, schools have been sued after disciplining students for off-campus messages supporting “white power,” attacking Jews and featuring photos of guns after a mass shooting at a Florida high school.

 Does the Supreme Court want a student speech case?

Will the Supreme Court take up the school district’s appeal? Each year the Supreme Court receives 7,000-8,000 petitions for appeal but takes up only about 80 of them.

“The question is, do they want a student speech case? And if they do, why do they want one?” renowned First Amendment expert and attorney Floyd Abrams said in an interview, noting that lower courts had split over whether schools can regulate off-campus speech, giving the Supreme Court a good reason to tackle the appeal.

“There’s no reason to use this case as a vehicle to decide that issue,” Sara Rose, an attorney for the American Civil Liberties Union who argued for B.L. before the appeals court, said in an interview.

Because the Third Circuit court of appeals had not found B.L.’s Snapchat post to be disruptive, and because established law bars schools from regulating off-campus speech that is not disruptive, there is no reason for the Supreme Court to take up the appeal, Rose said. The top court would likely prefer to review a case where the speech was blatantly disruptive, she said.

 ‘This is a very pro-First Amendment Court.’

The First Amendment protects U.S. citizens’ right to freedom of speech. But on school campuses, high school students cannot say disruptive or vulgar things. In 2011, a U.S. appeals court ruled that off-campus speech that is vulgar is protected by the First Amendment. But off-campus speech that is disruptive had not been tackled.

Abrams, who has argued 13 times before the Supreme Court including the landmark Pentagon Papers and Citizens United cases, said B.L. v. Mahanoy aligned with the Supreme Court’s inherent interest in the First Amendment.

“This is a very pro-First Amendment Court — liberals and conservatives,” he said. “It’s important for the interest of the First Amendment to be more rather than less clearly articulated. That sort of overview may lead the Court to take it.”

Protect digital speech? Or allow schools to regulate student speech?

But, he said, the Court could face a tough decision.

“This is a case in which conservative judges, who see themselves as very supportive of the First Amendment, might have a lot of qualms about the degree of protection that, what they would call, children have under the First Amendment when they are saying critical things about their school, their teachers and in this case an after-school activity,” Abrams said.

In other words, an increasingly conservative Supreme Court would have to decide between broadly protecting digital speech and giving schools the power to regulate student speech. Or the Court could agree with the ACLU that B.L.’s post was not “substantially disruptive” and therefore cannot be regulated.

B.L. v. Mahanoy underscores the challenge schools increasingly face in regulating off-campus speech, including online posts. Many schools have gone virtual this year, blurring the boundary between on- and off-campus. The digital revolution is posing new challenges for U.S. courts, entrusted with protecting free speech while keeping children safe and instilling social values.

Questions to consider:

1. On what grounds did B.L. challenge the Mahanoy school district’s decision to punish her?
2. If the U.S. Supreme Court decided to take up the appeal against B.L. v. Mahanoy, how do you think it would rule? Why?
3. Do you think a school should be able to punish a student if while off campus they published on social media a post denying the Holocaust?

Lucy Jaffee is in her second-to-last year of high school at La Jolla Country Day School in California. She is editor-in-chief of the school newspaper and a blogger, and enjoys reading and writing articles. Jaffee has recently become interested in government and civic engagement, including registering young people to vote. She loves to run, cook and bake.