In April, The Supreme Court heard oral arguments for Mahanoy Area School District v. B.L. to consider this very question.
The case originates from a student in Pennsylvania who had posted to her Snapchat story an expletive filled post to express grievances with her school and cheer team. After more than two-hundred and fifty students viewed her Snapchat post, multiple students approached the school’s cheer team leadership with concern over the post. The cheer team leadership found she had violated their rules and the student was penalized with a one-year suspension.
During oral argument, all of the justices appeared to be highly skeptical of the school’s authority to regulate this category of speech. Rather than accepting that schools may regulate speech everywhere except in certain circumstances, the Court appeared to support a framework in which speech may not be regulatable except under very specific circumstances. This largely continues with existing precedent established in Tinker v. Des Moines (1969) holding that there must be either a material and substantial disruption or an invasion of the rights of other students. Otherwise, the school may not reprimand a student for his or her speech.
There was insufficient evidence provided to meet the invasion of others’ rights qualification, which is traditionally interpreted to combat bullying. The school district did not allege that other students were claiming to be bullied by the Snapchat post. Therefore, it is much more likely the decision will rest on whether off-campus expletives are considered substantially disruptive. Justice Breyer commented directly on this issue, remarking that the use of expletives by the student did not provide much evidence of any disruption at all.
The Court was quick to raise concerns about other categories of speech in the realm of school regulation. Though there are too many examples of speech to list here, there are a few key examples relevant to schools the Court must examine. An example of unclear regulatable speech is whistleblowing. By many definitions, a whistleblower is intended to disrupt prevailing maladministration, however, some states give both government employees and students whistleblowing protections. Could a school regulate a students’ whistleblowing speech? The answer here is currently unclear and highly dependent on the circumstances. A state may protect a student’s whistleblowing, and every student certainly has First Amendment protections. Yet, the Court’s holding in Tinker would unintentionally categorize a student’s whistleblowing speech as punishable, which the justices viewed as dubious at best.
Not every example of disruptive speech was completely unclear, though. Cheating is highly disruptive to cultivating an honest intellectually rigorous academic environment, and schools may penalize students for cheating. Can students who share take-home exam answers at their homes be held accountable by the school for their speech? Normally, yes, because here the speech has a material impact on the students’ grades in school, meeting the standards set forth in Tinker.
Counsel for Mahoney Area School District remained lodged on the defensive during the entirety of questioning. The justices gradually paired down the jurisdiction that the school district could maintain functionally under Tinker. Counsel for the district rarely provided convincing justification that a school may regulate the speech in many of the examples the Court pondered. The justices were decidedly unconvinced that a school would have sufficient interest in regulating speech in scenarios such as a student cursing on a car ride to school or a student cursing at his or her own home.
The newest member of the Court, Justice Barrett, expressed dismay towards schools’ overreaching zeal to regulate speech which is neither disruptive nor burdensome, but is rather inconvenient for the schools. Justice Barrett was properly concerned with the broadness of previous Court rulings, which inadvertently leave the door open to misinterpretation by lower level courts.
If the Court keeps in line with its approach from its four previous school speech decisions, Mahanoy will almost certainly be tailored strictly to the circumstances of the school interest at stake.
The Court has an opportunity here to reaffirm two key principles outlined in Tinker. First, students do not shed their constitutional rights of freedom of speech or expression at the schoolhouse gate. Second, a school’s regulation of speech does not infinitely extend outside of the school simply because the speech belongs to a student.
Freedom of speech is an important pillar on which our Constitutional civil rights exist. Given in the very first amendment, its framers knew the importance and weight it carried.