Yesterday, the United States Supreme Court heard oral argument in its first case ever to address the discipline of students for speech occurring off-campus, on their own time, and online. The argument focused on what test should apply, the fate of political and religious speech under the proposed standards, whether schools can impose additional limits through extracurricular and athletic codes of conduct, and if the student in the specific case was too harshly disciplined for the speech in question.
A majority of the Court’s Justices appeared prepared to overturn the lower court decision, which had held that the longstanding “substantial disruption” test does not apply to off-campus student speech. A majority also struggled with whether—and, if so, how—to refine or replace that test with something clearer. Indeed, most seemed to lean toward deciding the case narrowly, finding that even if the substantial disruption test applies, the school did not meet it in this case. Such a decision would fail to provide school officials long-sought-after guidance on the bounds of their jurisdiction to address off-campus speech. Even though, as one of the attorneys noted, the “Court has not had a Tinker decision since Tinker,” there is a real chance that schools may have to wait decades more to get guidance from the highest court on this significant issue.
As we previously reported on this blog, Mahanoy Area School Dist. v. B. L.. involves a profanity-laden Snapchat tirade by a Pennsylvania high school cheerleader. Upon learning that she did not make varsity cheerleading, the student, B.L., posted a picture of herself on the Snapchat app with the text “f— school f— softball f— cheer f— everything.” It was a Saturday, and she was off-campus and not at a supervised school event. B.L.’s school suspended her from the junior varsity cheer team. It cited the impact that her conduct could have on the cheer coaches’ ability to maintain respect and order on the team and the confidence and trust of B.L. by other cheerleaders on the team.
The highest federal appellate court for Pennsylvania, the Third Circuit Court of Appeals, decided that the school had impermissibly disciplined B.L. for her speech. Significantly, it held that the seminal case addressing First Amendment rights of students in school—Tinker v. Des Moines Independent Community School District—does not apply to off-campus student speech. Of course, schools have been applying the Tinker’s “substantial and material disruption” and “invasion of rights of others” standards for decades. Understandably, the Third Circuit’s decision sent shockwaves through the educational community. The court did leave the door open for schools to discipline speech of students participating in extracurricular activities through a waiver. But it found that B.L.’s speech did not violate the terms of any athletic code she signed.
What Test Should Apply?
During the argument, the school district’s attorney presented its position that Tinker applies to off-campus student speech. The test, according to the school district’s attorney, respects the impact of the Internet on school life:
When it comes to the Internet, things like time and geography are meaningless, and it makes absolutely no sense whatsoever to say that the same speech is somehow within the school’s regulation if it’s one foot on campus or one foot off-campus or at the Starbucks or at the CVS or in your car or on the school bus. The Internet is ubiquitous.
What matters is not where speech occurs but whether the speech is directed at a school audience and about a school topic. If it is, a school can apply the Tinker standard and limit or discipline students whose speech creates an actual or reasonably foreseeable risk of a substantial and material disruption or invasion of the rights of others. The first step of the analysis identified by the district’s attorney is a version of the various “nexus” tests that courts across the country have used for years to determine if schools can limit or discipline off-campus speech.
Counsel for the U.S. Department of Justice relied on a similar test with a few additions. For example, the government asked the Court to recognize that schools can limit “quasi-fighting-words” that could not be limited outside of school but are particularly likely to cause a disturbance in the school environment. Under this theory, schools can consider the age and maturity of students and the fact that students are a captive audience in deciding whether speech can be restrained.
Counsel for B.L. argued that Tinker should not apply off campus unless the student is under the school’s “supervision” or sanction—a standard drawn from another Supreme Court decision on student speech, Morse v. Frederick. Notably, counsel for B.L. argued that even if off-campus speech is opened or accessed at school, it should not be subject to Tinker. Parents and the legal justice system—not schools—should control student speech occurring outside the “supervision of the school,” unless the speech is prohibited by one of five separate First Amendment doctrines allowing greater restraint for speech like bullying, harassment, cheating, and threats. Unfortunately, those standards have never been defined in the school context. Counsel for the school district called B.L.’s approach “a Frankenstein’s monster of First Amendment doctrines all mashed together” and “an administrative nightmare where the sheer complexity heightens the risk of calamitous error.”
The court struggled mightily with determining which of the tests proposed is superior. As Justice Stephen Breyer put it:
I’m frightened to death of writing a standard.
But many also recognized that Tinker does not provide a standard, and that schools could benefit from more clarity on their jurisdiction.
What About Political and Religious Speech?
Another issue that the parties debated at length with the Court was whether the Tinker test allows schools to limit or discipline political or religious speech. Interestingly, counsel for the school district suggested that political or religious speech could only be regulated if used to “terrorize” a particular school community member, such as another student or a teacher. Otherwise, according to counsel for the district, such speech has been “off-limits since 1969” under Tinker. Counsel for the student and the U.S. government, which intervened in support of the district, both recognized that schools have long limited political and religious speech, but only if it meets Tinker’s high disruption bar.
Limits for Extracurricular Activity
Another issue debated at length was whether schools can impose additional limits on student speech because of participation in extracurricular activities. Counsel for B.L. interestingly argued that schools have wide latitude to limit student speech through extracurricular codes and urged the Court not to address that issue, which the district did not raise on appeal. As the government’s attorney explained, however:
[I]f B.L. had been suspended from the cheerleading team because the coach disagreed with her political views, that would be impermissible. That would be a clear violation, even though the only sanction was removal from the extracurricular, and it would be no different if the school tried to extract a waiver in advance of the right to engage in speech that had no inherent connection to the school or the team.
Instead, counsel for the school district and the government argued that a school can conclude that speech will disrupt the operations of a particular school program even if it wouldn’t disrupt the operations of the school as a whole. In determining what counts as a substantial disruption, courts should look to the purpose of the program. For example, the coach testified in B.L.’s case that one of the purposes of cheerleading was to teach team-building skills that students would take with them through life. Accordingly, a court should consider whether the Snap-in question would disrupt that team’s chemistry. No blanket waiver of First Amendment rights should be allowed, however.
Did the Punishment Fit the Crime?
Although not obviously relevant to the legal question before it, many of the Justices—including Justices Breyer, Brett Kavanaugh, and Sonia Sotomayor—were preoccupied with whether the specific speech in question justified a one-year suspension from the cheerleading team. Justice Kavanaugh described how Michael Jordan referred to being cut as a sophomore from the varsity team when he was inducted into the Hall of Fame in 2009—“And he wasn’t joking.” B.L. did nothing more than what “millions of other kids have when they’re disappointed about being cut from the high school team.”
Reading the Tea Leaves
Together, most of the Justices seemed willing to allow schools to continue to address off-campus student speech. Justice Clarence Thomas appeared interested in granting school’s almost unlimited authority to limit speech on the Internet because of its reach. At the other end of the spectrum, Justice Amy Coney Barrett, a known supporter of religious rights, asked why we should not apply the most protective test for speech, which would suggest support for B.L.’s more restrictive interpretation of the law. However, the remaining seven Justices expressed concern with the test proposed by B.L. and so may support keeping the Tinker test in place.
What is less clear is whether the Court will give schools any additional guidance about applying Tinker. Many Justices agreed that even if the Tinker test applies, the school did not show a substantial disruption. As Justice Breyer explained:
Did [B.L.’s speech] cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off-campus did, I mean, my goodness, every school in the country would be doing nothing but punishing.
Indeed, the Court need not even go that far. As Justice Kavanaugh explained, the Court could:
just simply [say] the First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off-campus, period. It may matter that the analysis here involves — or the situation here involves a team, not just the school more broadly, period. Remand.
If the Court took either approach, it could stop there without clarifying the Tinker standard.