Free speech has always been and remains a hotly contested issue in our society, especially in the public school context. There is a delicate balancing act between recognition of schools’ necessity to maintain an orderly environment conducive to learning and their students’ First Amendment rights. Last summer, in B.L. v. Mahanoy Area School District, the United States Court of Appeals for the Third Circuit – which does not have jurisdiction over New York State – waded into these turbulent waters and rendered a decision in favor of a student punished for off-campus Internet speech. The U.S. Supreme Court is now set to hear the case this Spring, which will have implications for the entire country.
Standard in New York State
At the outset, it is important to recall the standard for student free speech in New York. The federal appeals court in which New York is located (the Second Circuit Court of Appeals) has held that a student may be disciplined for off-campus speech if there is a “reasonably foreseeable risk that [such speech] would come to the attention of school authorities and that it would ‘materially and substantially disrupt the work and discipline of the school.’” Wisniewski v. Bd. of Educ., 494 F.3d 34, 39 (2d Cir. 2007). Because other Circuit Courts (like the Third Circuit Court discussed in this article) have adopted other standards, the Second Circuit rule we follow in New York is reliant on there being no overarching federal standard for student Internet speech. The pending case, B.L., will likely result in the Supreme Court articulating a uniform standard for the whole country.
B.L. v. Mahanoy Area School District
In broad strokes, the Third Circuit case involves a disgruntled cheerleader, B.L. expressing her frustration at being kept on the JV cheer team as a sophomore. The student took to Snapchat over the weekend, posting a selfie raising a middle finger with an expletive laden caption that in effect summarized her feelings about the decision. The school suspended B.L. from cheering for one year and her parents sued the school district in federal court, alleging the suspension violated her free speech rights. Particularly at issue was when and how the post was made: off-campus, on the weekend, without using “school resources” (in other words, using an app on her phone). The student’s family prevailed at both the district court level and the federal Court of Appeals.
The legal issue at all levels of judgment was whether B.L.’s off-campus speech warranted First Amendment protection, and whether the school district had the legal authority to punish her for speech with the potential to materially and substantially disrupt the cheerleading team.
On- vs. Off-Campus Speech
Notably, if B.L.’s speech had occurred on-campus, her punishment would not be subject to challenge. Schools have more leeway to regulate student on-campus speech, which includes not only speech that occurs physically on-campus, but also speech during school-sponsored activities. School administrators are in a challenging position, however, when it comes to off-campus speech because of varying and ever-changing standards for student Internet speech: federal standards are based on a 1969 Supreme Court case involving black arm bands for students protesting the Vietnam War. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503. Notably, that case was decided before the advent of the Internet. Now, with the pervasive use of social media, student speech more easily reaches the school from off-campus, which has caused the confusion around the current, outdated federal standard.
In B.L., the Third Circuit Court of Appeals classified B.L.’s speech as off-campus. It then made a dramatic departure from the legal standard applicable in New York State: it found that “speech that is outside school-owned, -operated, or -supervised channels that is not reasonably interpreted as bearing the school’s imprimatur” cannot be disciplined by schools. The school has since appealed the decision to the U.S. Supreme Court, claiming the court should have evaluated whether the speech was sufficiently disruptive to the learning environment to justify the punishment.
The Supreme Court’s Task
Now, the Supreme Court must decide whether public school officials may regulate the speech of students that would materially and substantially disrupt the work and discipline of the school when the speech occurs off-campus. Fortunately, whatever the court decides will apply nationwide, resolving the difference in treatment of this issue by the lower courts.
B.L.’s attorneys have argued that since the speech occurred off-campus, on the weekend and does not even mention the school by name, much less threaten or harass anyone associated with it, the facts do not suggest any disruption of the school warranting an evaluation of whether off-campus speech can be regulated for such disruption. However, as administrators can attest to, even vague comments can disrupt the school. In B.L., the Court highlights, “Several students, both cheerleaders and non-cheerleaders,” approached administration “visibly upset . . . to ‘express their concerns that [B.L.’s] [s]naps were inappropriate.’”
Attorneys in opposition to B.L.’s family argued that the Supreme Court should permit school discipline of off-campus speech where it has the potential for material and substantial disruption of the school environment. They allege that when school administrators are unable to discipline students for what they deem disruptive speech occurring off-campus, they lose an important tool to maintain a safe and supportive school environment.
The forthcoming Supreme Court decision will determine whether and how schools can regulate off-campus speech. With the ubiquitous usage of social media by students, this decision will influence school policy for years to come.
If you have any concerns related to the foregoing, please do not hesitate to reach out with any questions at tbarrett@ferrarafirm.com or one of the numbers listed below.