Mahanoy Area School District v. B.L., 594 U.S. 180 (2021)

Mahanoy Area School District v. B.L.
594 U.S. 180 (2021)

(Justice Breyer’s opinion describes the relevant facts.)

Justice Breyer delivered the opinion of the Court.
A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team. We must decide whether the Court of Appeals for the Third Circuit correctly held that the school’s decision violated the First Amendment. Although we do not agree with the reasoning of the Third Circuit panel’s majority, we do agree with its conclusion that the school’s disciplinary action violated the First Amendment. 

B. L. (who, together with her parents, is a respondent in this case) was a student at Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. At the end of her freshman year, B. L. tried out for a position on the school’s varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior varsity team. B. L. did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team.

That weekend, B. L. and a friend visited the Cocoa Hut, a local convenience store. There, B. L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B. L. posted the images to her Snapchat “story,” a feature of the application that allows any person in the user’s “friend” group (B. L. had about 250 “friends”) to view the images for a 24 hour period.

The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.” The second image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The caption also contained an upside-down smiley-face emoji.

B. L.’s Snapchat “friends” included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B. L.’s posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches “visibly upset” about B. L.’s posts. Questions about the posts persisted during an Algebra class taught by one of the two coaches. 

After discussing the matter with the school principal, the  coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. As a result, the coaches suspended B. L. from the junior varsity cheerleading squad for the upcoming year. B. L.’s subsequent apologies did not move school officials. The school’s athletic director, principal, superintendent, and school board, all affirmed B. L.’s suspension from the team. In response, B. L., together with her parents, filed this lawsuit in Federal District Court …

The District Court found in B. L.’s favor. … It found that B. L.’s Snapchats had not caused substantial disruption at the school. Cf. Tinker v. Des Moines Independent Community School Dist. (1969). Consequently, the District Court declared that B. L.’s punishment violated the First Amendment, and it awarded B. L. nominal damages and attorneys’ fees and ordered the school to expunge her disciplinary record.

On appeal, a panel of the Third Circuit affirmed the District Court’s conclusion. 

The school district filed a petition for certiorari in this Court, asking us to decide “[w]hether [Tinker], 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.” We granted the petition.

We have made clear that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the schoolhouse gate.”  Tinker. But we have also made clear that courts must apply the First Amendment “in light of the special characteristics of the school environment.”  One such characteristic … is the fact that schools at times stand in loco parentis, i.e., in the place of parents. 

This Court has previously outlined three specific categories of student speech that schools may regulate in certain circumstances: (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds (2) speech, uttered during a class trip, that promotes “illegal drug use,” see Morse v. Frederick (2007); and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper.

Finally, in Tinker, we said schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” These special characteristics call for special leeway when schools regulate speech that occurs under its supervision.

Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school  regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

Even B. L. herself and the amici supporting her would redefine the Third Circuit’s off-campus/on-campus distinction, treating as on campus: all times when the school is responsible for the student; the school’s immediate surroundings; travel en route to and from the school; all speech taking place over school laptops or on a school’s website; speech taking place during remote learning; activities taken for school credit; and communications to school e-mail accounts or phones. And it may be that speech related to extracurricular activities, such as team sports, would also receive special treatment under B. L.’s proposed rule. 

We are uncertain as to the length or content of any such list of appropriate exceptions or carveouts to the Third Circuit majority’s rule. That rule, basically, if not entirely, would deny the off-campus applicability of Tinker’s highly general statement about the nature of a school’s special interests. Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list. Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself. 

Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as “off campus” speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a  school community.

We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings  in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” (Although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall.)

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.

Consider B. L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school—in a word or two, criticism of the rules of a community of which B. L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B. L.’s posts, while crude, did not amount to fighting words. See Chaplinsky v. New Hampshire (1942). And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection. See  Snyder v. Phelps (2011) (First Amendment protects “even hurtful speech on public issues to ensure that we do not stifle public debate”) …

Consider too when, where, and how B. L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless (for reasons we have just explained) diminish the school’s interest in punishing B. L.’s utterance.

But what about the school’s interest, here primarily an interest in prohibiting students from using vulgar language to criticize a school team or its coaches—at least when that criticism might well be transmitted to other students, team members, coaches, and faculty? We can break that general interest into three parts.

First, we consider the school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community. The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time. See Morse (clarifying that although a school can regulate a student’s use of sexual innuendo in a speech given within the school, if the student “delivered the same speech in a public forum outside the school context, it would have been protected”) …

B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school’s interest in teaching good manners is not sufficient, in this case, to overcome B. L.’s interest in free expression.

Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the school’s action. Tinker. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats. But when one of B. L.’s coaches was asked directly if she had “any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking … about it,” she responded simply, “No.” As we said in Tinker, “for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The alleged disturbance here does not meet Tinker’s demanding standard.

Third, the school presented some evidence that expresses (at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B. L., not because of any specific negative impact upon a particular member of the school community, but “based on the fact that there was negativity put out there that could impact students in the school.” There is little else, however, that suggests any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion. As we have previously said, simple “undifferentiated fear or apprehension … is not enough to overcome the right to freedom of expression.” Tinker.

It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.”  

Although we do not agree with the reasoning of the Third Circuit’s panel majority, for the reasons expressed above, resembling those of the panel’s concurring opinion, we nonetheless agree that the school violated B. L.’s First Amendment rights. The judgment of the Third Circuit is therefore affirmed.

It is so ordered.

Justice Alito, with whom Justice Gorsuch joins, concurring.
Tinker teaches that expression that does not interfere with a class (such as by straying from the topic, interrupting the teacher or other students, etc.) cannot be suppressed unless it “involves substantial disorder or invasion of the rights of others.” 

A public school’s regulation of off-premises student speech is a different matter. While the decision to enroll a student in a public school may be regarded as conferring the authority to regulate some off-premises speech, enrollment cannot be treated as a complete transfer of parental authority over a student’s speech. In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children. Parents do not implicitly relinquish all that authority when they send their children to a public school. As the Court notes, it would be far-fetched to suggest that enrollment implicitly confers the right to regulate what a child says or writes at all times of day and throughout the calendar year… While the in-school restrictions … are essential to the operation of a public school system, any argument in favor of expansive regulation of off-premises speech must contend with this fundamental free-speech principle.

The degree to which enrollment in a public school can be regarded as a delegation of authority over off-campus speech depends on the nature of the speech and the circumstances under which it occurs. [T]he question that courts must ask is whether parents who enroll their children in a public school can reasonably be understood to have delegated to the school the authority to regulate the speech in question.

One category of off-premises student speech falls easily within the scope of the authority that parents implicitly or explicitly provide. This category includes speech that takes place during or as part of what amounts to a temporal or spatial extension of the regular school program, e.g., online instruction at home, assigned essays or other homework, and transportation to and from school … Abusive speech that occurs while students are walking to and from school may also fall into this category on the theory that it is school attendance that puts students on that route and in the company of the fellow students who engage in the abuse. The imperatives that justify the regulation of student speech while in school—the need for orderly and effective instruction and student protection—apply more or less equally to these off-premises activities. …

At the other end of the spectrum, there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection, and the connection between student speech in this category and the ability of a public school to carry out its instructional program is tenuous.

If a school tried to regulate such speech, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises. But it is a “bedrock principle” that speech may not be suppressed simply because it expresses ideas that are “offensive or disagreeable.” It is unreasonable to infer that parents who send a child to a public school thereby authorize the school to take away such a critical right. …   

Between these two extremes (i.e., off-premises speech that is tantamount to on-campus speech and general statements made off premises on matters of public concern) lie the categories of off-premises student speech that appear to have given rise to the most litigation. …

One group of cases involves perceived threats to school administrators, teachers, other staff members, or students. Laws that apply to everyone prohibit defined categories of threats, but schools have claimed that their duties demand broader authority. 

Another common category involves speech that criticizes or derides school administrators, teachers, or other staff members. Schools may assert that parents who send their children to a public school implicitly authorize the school to demand that the child exhibit the respect that is required for orderly and effective instruction, but parents surely do not relinquish their children’s ability to complain in an appropriate manner about wrongdoing, dereliction, or even plain incompetence.

Perhaps the most difficult category involves criticism or  hurtful remarks about other students. Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.

The present case does not fall into any of these categories. Instead, it simply involves criticism (albeit in a crude manner) of the school and an extracurricular activity. Unflattering speech about a school or one of its programs is different from speech that criticizes or derides particular individuals, and for the reasons detailed by the Court, the school’s justifications for punishing B. L.’s speech were weak. …

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.

Justice Thomas, dissenting.
B. L., a high school student, sent a profanity-laced message to hundreds of people, including classmates and teammates. The message included a picture of B. L. raising her middle finger and captioned “F*** school” and “f*** cheer.” This message was juxtaposed with another, which explained that B. L. was frustrated that she failed to make the varsity cheerleading squad. The cheerleading coach responded by disciplining B. L.

The Court overrides that decision—without even mentioning the 150 years of history supporting the coach …

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of ratification [of the Fourteenth Amendment, through which the Court applied the First Amendment to the States] would have understood” the right to encompass. Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. [T]at authority was near plenary while students were at school. Authority also extended to when students were traveling to or from school. And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment.

Perhaps the most familiar example applying this rule is a case where a student, after returning home from school, used “disrespectful language” against a teacher—he called the teacher “old”—“in presence of the [teacher] and of some of his fellow pupils.” The Vermont Supreme Court held that the teacher could discipline a student for this speech because the speech had “a  direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and insubordination. The court distinguished the speech at issue from speech “in no ways connected with or affecting the school” and speech that has “merely a remote and indirect tendency to injure.”  

This rule was widespread …

If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it. I would thus apply the rule. Assuming that B. L.’s speech occurred off campus, the purpose and effect of B. L.’s speech was “to degrade the [program and cheerleading staff]” in front of “other pupils,” thus having “a direct and immediate tendency to . . . subvert the [cheerleading coach’s] authority.”  As a result, the coach had authority to discipline B. L. …

The majority declines to consider any of this history, instead favoring a few pragmatic guideposts. This is not the first time the Court has chosen intuition over history when it comes to student speech. The larger problem facing us today is that our student-speech cases [including Tinker, which Justice Thomas would like the Court to overrule] are untethered from any textual or historical foundation. That failure leads the majority to miss much of the analysis relevant to these kinds of cases … 

The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leav[es] for future cases” the job of developing this new common-law doctrine.  But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent.