The United States Supreme Court recently agreed to hear a First Amendment issue in a Pennsylvania federal court of appeals case involving a high school cheerleader who was suspended from the cheerleading team for repeatedly using the F-word and posting a picture of her making a vulgar gesture on Snapchat after not making the varsity cheer team.[i] The Supreme Court’s decision will hopefully provide clarity to a question which has plagued school districts in today’s age of social media: under which circumstances can a school discipline students for their off-campus on-line speech?
To understand why the Supreme Court agreed to take up this dispute, a brief review of students’ free speech rights is warranted. The First Amendment provides that “Congress shall make no law…abridging the freedom of speech.” Yet, as the Pennsylvania federal court stated, “those deceptively simple words have spun off a complex doctrinal web.”[ii] The groundbreaking decision about public school student speech is Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), involving students suspended for wearing black armbands to protest the Vietnam War. Therein, the Supreme Court held that that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the Court also found that student conduct which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not immunized by the constitutional guarantee of freedom of speech. Tinker thus struck a balance, reaffirming students’ rights but recognizing an exception under which public schools could regulate speech. This became known as the “Tinker test,” under which schools may restrain student speech where it is reasonably foreseeable that the speech will cause a substantial and material disruption to school activities.
Subsequently, the Supreme Court recognized various limited areas in which schools can regulate student speech without meeting Tinker’s substantial disruption standard. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Court held that a school district may regulate student speech that is lewd, vulgar, or profane. In Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), the Court held that a school district may regulate student speech that constitutes school-sponsored speech, i.e., speech that a reasonable observer would view as the school’s own speech, so long as such regulations bear a reasonable relationship to “legitimate pedagogical concerns.” And in Morse v. Frederick, 551 U.S. 393 (2007), the Court held that a school district may regulate student speech that advocates for illegal drug use.
But all these decisions involved on-campus speech. In today’s age of social media, the speech in question is more likely to take place off school property and on Facebook, Snapchat, Twitter, Tik Tok, etc. When deciding whether schools can discipline students for their off-campus speech, federal courts have taken various approaches, but typically apply Tinker in some way. One line of cases applies Tinker where it is reasonably foreseeable that a student’s off-campus speech would reach the school environment (2nd and 8th circuit). Another line of cases applies Tinker to off-campus speech with a sufficient “nexus” to the school’s “pedagogical interests.” (4th and 9th circuit). Finally, a third branch applies Tinker to off-campus speech without articulating a specific test or standard (5th and, again, 9th circuit).
Ohio state courts have not adopted a specific approach either. For example, in a recent case involving discipline for off-campus speech, Ohio’s Fifth District Court of Appeals applied Tinker and ruled that, as matter of first impression, the school had authority to regulate a student’s off-campus speech. N.Z. v. Madison Bd. of Education, 2017-Ohio-6992 (5th Dist.) However, the Court did not use a specific approach. Rather, it found that the school had the authority to regulate the speech “under a circumstance-specific inquiry, nexus test, or reasonable foreseeability test…”
And to spin this complex doctrinal web even further, in B.L. by & through Levy v. Mahanoy Area School Dist., 964 F.3d 170 (3d Cir.2020) (the Pennsylvania cheerleader case referenced earlier), the 3rd U.S. Circuit Court of Appeals broke with other federal courts and ruled that Tinker does not apply to off-campus speech – resulting in a sweeping victory for the student. It is the first federal circuit court to hold that Tinker categorically does not apply to off-campus speech – prompting the Supreme Court to take up the issue. Thus, over 50 years later, the Tinker decision may face even more tinkering. Hopefully, the Supreme Court will provide clarity to this murky area involving discipline of students for their off-campus speech.
[i] B.L. by & through Levy v. Mahanoy Area School Dist., 964 F.3d 170 (3d Cir.2020), cert. granted sub nom. Mahanoy Area School Dist. v. B. L., 2021 WL 77251 (Jan. 8, 2021)
[ii] Id. at 176.