Off-campus speech has proven challenging for school officials, as the line separating the school environment from students’ lives outside school is blurred. On one hand, if a student posts something during the school day or while walking home, it can have a “substantially disruptive” effect. On the other hand, allowing the school district to regulate off-campus speech empowers—and may even require—school officials to monitor and punish what students do in the privacy of their own homes and lives.
Federal circuit courts have addressed this issue with mixed results. The Third Circuit Court of Appeals (PA, NJ, DE, and VI) found in favor of students who made insulting online parodies of school personnel. But the Third Circuit’s stance conflicted with several other federal court rulings. In the Fifth Circuit (serving parts of LA, MS, and TX), a student claimed that school officials violated his First Amendment rights when disciplining him after he created an offensive rap song with threatening lyrics about school personnel. The court ruled in favor of the school district. The Second, Fourth, Eighth, and Ninth Circuits have also sided at times with school officials in off-campus student speech cases.
Such tension among federal courts invites review by the Supreme Court, which weighed in with an 8-1 ruling in favor of students’ out-of-school speech rights on June 23, 2021, in the case Mahanoy Area School District v. B.L. We explore the implications of this decision for principals.
A student was suspended from the cheerleading squad for posting a selfie raising her middle finger and a caption that read “f*** school, f*** softball, f*** cheer, f*** everything” on Snapchat after she was placed on the junior varsity squad instead of the varsity squad. This selfie was sent to 250 friends and eventually spread throughout the school. The cheerleading coaches, who were also teachers in the district, learned about the snap. Before trying out for the cheerleading squad, the student had signed a “Cheerleading Rules” document that stated:
“Please have respect for your school, coaches, teachers, other cheerleaders, and teams. Remember you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures.” The rules further stated that: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”
The student sought declaratory and injunctive relief (asking the court to state, in a court order, what the rights of the parties are and/or to state that the conduct of the defendant was unlawful). The Third Circuit held that the student’s First Amendment rights were violated and that she did not waive her rights by joining the squad. The appellate decision would not have attracted much attention if the court had simply ruled that B.L.’s expression did not disrupt the school or the cheerleading program. But instead, the court made sweeping pronouncements that off-campus student expression is not governed by the exceptions to constitutional protection outlined in Tinker v. Des Moines Independent Community School District, and that students do not waive their First Amendment protections by participating in extracurricular activities. There was concern among some administrators that, if affirmed, both declarations could negate state anti-bullying laws and school district policies governing extracurricular participation.
NASSP joined other professional organizations in an amicus curiae brief urging the Court to rule in favor of the school district. The brief stated: “The Third Circuit’s rigid rule, if adopted, would create a dangerous loophole. A student could engage in malicious speech directly targeting the school … without facing any repercussions.” Theirs was one of 36 amicus briefs filed, representing a wide range of views by education professionals and others, including Mary Beth and John Tinker.
The Court did not endorse the Third Circuit’s reasoning, concluding instead that the special characteristics of the school might allow it at times to regulate some expression initiated off campus—including severe bullying or harassment, threats, failure to follow rules pertaining to online school activities, and breaches of school security devices.
While acknowledging that Tinker’s exceptions to constitutional protection (i.e., expression posing a “substantial disruption” or interfering with others’ rights) can apply off-campus under certain conditions, the Court did not provide clarity in outlining when the school’s interest in regulating such off-campus speech is diminished. It noted that schools rarely function in place of parents off campus, courts should be “skeptical of a school’s efforts to regulate off-campus speech,” and schools should protect unpopular expression, especially when initiated away from school. However, the Court was vague as to specific off-campus expression that would be protected and left “for future cases to decide where, when, and how these features” will determine that the expression’s locale “will make the critical difference.”
Lessons for Principals
School boards, with input from lawyers and students, would be wise to enact specific policies outlining the types of student off-campus expression that can evoke disciplinary action. Shortly after the decision, Ronn Nozoe from NASSP commented on the Court’s opinion in Education Week: “We’re glad that the ruling left the door open … to ensure that school administrators and school leaders retain the right to take action—disciplinary or otherwise—on matters that happen outside of school that threaten or jeopardize the normal and safe operations of school.”
School boards, with input from lawyers and students, would be wise to enact specific policies outlining the types of student off-campus expression that can evoke disciplinary action. Shortly after the decision, Ronn Nozoe from NASSP commented on the Court’s opinion in Education Week:“We’re glad that the ruling left the door open … to ensure that school administrators and school leaders retain the right to take action—disciplinary or otherwise—on matters that happen outside of school that threaten or jeopardize the normal and safe operations of school.”
- Encourage student expression: To optimize healthy development and school success, youths need to express their feelings. If there is a speech concern that arises, seek other ways besides punishment to respond.
- De-escalate tension and consider school culture: Create a school culture that involves student input in decision making that promotes greater understanding and de-escalates tensions.
- Implement youth counseling programs: Students trained to be “first responders” can help classmates cope with stress in positive ways.
- Use restorative justice programs: Students can help to resolve problems between students and others without punitive measures.
- Strengthen bullying prevention and education: Students who bully need as much attention as those who are bullied. Policies should include clear definitions of bullying and harassing expression that can be curtailed. Involve students and parents at all levels.
- Clarify conditions for extracurricular participation: Include students and school board lawyers in designing regulations that govern extracurriculars. The precedent that extracurricular participation is a privilege was not challenged by the Court ruling.
Martha McCarthy is a presidential professor at Loyola Marymount University and a chancellor’s professor emeritus at Indiana University. She is a co-author of Legal Rights of School Leaders, Teachers, and Students and a past president of the Education Law Association. Suzanne E. Eckes is the Susan S. Engeleiter Professor in Education, Educational Leadership & Policy Analysis at the University of Wisconsin-Madison in Madison, WI, a co-author of Principals Avoiding Lawsuits, and a past president of the Education Law Association. Mary Beth Tinker was one of three youth plaintiffs in Tinker v. Des Moines (1969). She speaks with groups across the country about youth health and the rights of young people.
Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015).
B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).
J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011).
Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011).
Mahanoy Area Sch. Dist. v. B.L., 594 U.S. (2021).
National School Boards Association, et al. (2021, March 1). Amici curiae brief to the Supreme Court in support of petitioners in Mahanoy Area Sch. Dist. v. B.L., No. 20-255.
Superville, D. (2021, June 23). Educators look for guideposts in Supreme Court ruling of student free speech. Education Week.
Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503 (1969).