The Supreme Court heard arguments late last month in Mahanoy Area School District v. B.L., a First Amendment case that made it to the high court after lower courts split on whether a school was within its rights to discipline a student for what she said on social media to a select group of peers.
The school district agrees that schools should teach “how to think, not what to think” and cannot punish students for being critical of or ridiculing school. However, it argued schools should be able to regulate off-campus student speech that affects school climate, disrupts school activities or interferes with other students’ rights, arguing the student’s video on social media (which was made on a Saturday when school was out of session) targeted coaches and students and their ability to cheer, according to an Education Dive report.
Attorneys representing the student argued her social media post didn’t disrupt school operations and that a one-time incident was separate from other instances of ongoing online campaigns or virtual harassment disparaging schools. The social media post resulted in the student being suspended from the cheerleading squad for a year.
Why is this particular case important to school leaders?
It has the potential to determine whether schools can discipline off-campus speech, namely speech made on social media. The decision could build on the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, which found that public schools can discipline or regulate speech that would disrupt school operations. The case is particularly urgent in the context of remote learning during the pandemic, experts say.
Jason Walta, deputy general counsel for the National Education Association, has said that one of two outcomes are likely: The court may decide off-campus speech cannot be regulated by schools in any case or that off-campus speech may be regulated in some cases where the content is potentially threatening, bullying or harassing.
Previously, schools have often deferred to the latter option, which is also largely supported by the lower courts outside of the Third Circuit, in the absence of a Supreme Court decision. However, prior to this case, lawyers say they have had to warn school districts they may lose litigation in instances where schools have tried to regulate students’ off-campus speech. Still, schools have sometimes felt compelled to move forward with legal action out of concern for the message it sends to the school community if they don’t address it.
At the heart of the decision are two questions: Was the suspension an overreaction by the coach since the post wasn’t threatening and didn’t cause substantial disruption? Or should schools be able to discipline in instances where off-campus speech spills over to the on-campus climate or threatens school safety?