We now have a new Associate Justice on the United States Supreme Court, Amy Coney Barrett. For those interested in how she might rule on disability rights matters, see this blog entry1821206969198. Today’s blog entry came to me from my involvement with the Federal Bar Association civil rights section. Caryl  Oberman, a Pennsylvania attorney exclusively focusing on special education law, alerted me to this case. It isn’t a disability rights case per se. However, it applies to anyone, which of course includes persons with disabilities, in a public school. Also, it isn’t unusual for me to write unconstitutional law with respect to people with disabilities. The case of the day is B.L. v. Mahanoy Area School District1831217070199, 964 F.3d 170 (3d Cir. 2020), decided on June 30, 2020. As usual, the blog entry is divided into categories and they are: facts; First Amendment protection; punishment of student violated First Amendment; views from other courts and why a legal principle must be established; the Third Circuit approach and the policies behind it; student did not waive free speech rights; concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

I

Facts

B.L. is a student at Mahanoy Area High School (MAHS). As a rising freshman, she tried out for cheerleading and made junior varsity. The next year, she was again placed on JV. To add insult to injury, an incoming freshman made the varsity team.

B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?.”

One of B.L.’s teammates took a screenshot of her first snap and sent it to one of MAHS’s two cheerleading coaches. That coach brought the screenshot to the attention of her co-coach, who, it turned out, was already in the know: “Several students, both cheerleaders and non-cheerleaders,”had approached her, “visibly upset,” to “express their concerns that [B.L.’s] [s]naps were inappropriate.”

The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, requiring cheerleaders to “have respect for [their] school, coaches, … [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches … on the internet.” They also felt B.L.’s snap violated a school rule requiring student athletes to “conduct[] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” So the coaches removed B.L. from the JV team. B.L. and her parents appealed that decision to the athletic director, school principal, district superintendent, and school board. But to no avail: Although school authorities agreed B.L. could try out for the team again the next year, they upheld the coaches’ decision for that year.

II

First Amendment Protection

1. Supreme Court jurisprudence reveals that students First Amendment rights are subject to narrow limitations when speaking in the school context but are coextensive with those of an adult outside that context.
2. A schoolyard’s physical boundaries are not necessarily coextensive with the school context.
3. School officials may not reach into a child’s phone and control his or her actions to the same extent they can control that child when he or she participates in school sponsored activities. To do otherwise would twist Supreme Court jurisprudence limited accommodation of the special characteristics of the school environment into a broad rule restricting free speech of all young people who happen to be enrolled in public school.
4. The digital revolution has made it very difficult to separate on from off-campus speech.
5. While updating the line between on and off-campus speech may be difficult, it is still a task that must be done.
6. A student’s online speech is not rendered on campus simply because it is about the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment. That principle was true before the digital age and remains true in the digital age.
7. The student’s post on Snapchat easily falls outside the school context for several reasons. First, the relevant speech did not take place in the school sponsored forum. Second, the relevant speech did not take place in the context bearing the imprimatur of the school. Third, the place where the speech was posted was not one where the school owned or operated the online platform. Instead, the post was created on snap away from campus, over the weekend, without school resources, and shared on a social media platform unaffiliated with the school.
8. Mere mention of the school and that it reached school officials and students is not enough for the court to hold that the speech occurred on campus.

III

Punishment of Student Violated the First Amendment

1. The free speech rights of students are not limited to matters of public concern.
2. Schools cannot punish students for speech in an area traditionally beyond regulation. Those concerns are equally valid where school seek to control student speech using even modest measures, much less participation in extracurricular activities, which are an important part of the educational program.

IV

Views from Other Courts and Why a Legal Principle Must Be Established

1. Social media has continued its expansion in every corner of modern life. Even so, courts are completely without guidance when it comes to figuring out permissible lines of student speech.
2. Courts take various approaches in trying to figure out when students speech can be regulated by the school.
3. The approach of the Second Circuit is whether it is reasonably foreseeable that a student’s off-campus speech reaches the school environment.
4. The Fourth Circuit takes the approach of asking the question whether off-campus speech has a sufficient nexus to the school’s pedagogical interests.
5. Other Circuits use a case-by-case analysis.
6. The reasonable foreseeability test doesn’t work in the digital age for the following reasons: 1) when a student speaks in the modern public square of the Internet, it is highly possible, if not a virtual certainty, that her speech will be viewed by fellow students and accessible from the school; 2) depending upon the privacy settings favored by the student’s friends or followers, her message will automatically pop up on the face of classmates phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms; and 3) accepting that the Internet and social media have expanded the authority of the school to regulate the speech of students is not an assumption that can be accepted because it subverts the long-standing principle that heightened authority over student speech is the exception and not the rule.
7. The nexus test doesn’t work either. The problem that test suffers from is that it erases the dividing line between speech in the school context and beyond it, a line vital to young people’s free-speech rights. The nexus test also raises the possibility of school officials asserting the power to regulate any student speech that interferes with the school’s educational mission, a power that can be easily manipulated in dangerous ways.
8. None of the approaches taken by the other Circuits provide any clarity or predictability.

V

The Third Circuit Approach and The Policies behind It

1. Schools do not have the authority to regulate off-campus speech.
2. Off-campus speech is speech outside school owned, operated, or supervised channels that is not reasonably interpreted as bearing the school’s endorsement.
3. The school’s ability to restrict the speech of students makes sense when a student stands in the school context and has a captive audience of his peers. However, it makes little sense where the student stands outside that context given that any effect on the school environment depends upon others choices and reactions.
4. New communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. Such efforts cannot be permitted regardless of their intentions without sacrificing the precious freedoms protected by the First Amendment.
5. The consensus in the analog era was that controversial off-campus speech was not subject to school regulation, and that is an important principle to adhere to even as speech moves online.
6. Holding off-campus speech off limits to school regulation has the advantage of offering upfront clarity to students and to school officials. Such a principal allows both students and school official to determine when they are subject to the authority of the school and when they are not.
7. A test based upon the likelihood that speech reaches the school environment fails to provide that clarity. The same goes for whether a sufficient nexus exists.
8. The scope of a test on whether speech occurs in the context owned, controlled, or sponsored by the school is much more easily applied and understood.
9. The school still has the authority under this decision to deal with any student who shares or reacts to controversial off-campus speech in a disruptive manner.
10. This case did not involve off-campus speech threatening violence or harassing particular students or teachers. Such a case raises different concerns and may well come out differently under the First Amendment.
11. Both the U.S. Constitution and American history say that it is important that vulgar, uncouth, or, offensive speech be beyond the powers of schools to regulate because openness is the very basis of our national strength and of the independence and vigor of Americans growing up in a relatively permissive and highly contentious society.
12. Careful lines of the authority of schools to regulate student speech is no less vital in today’s digital age in order to ensure adequate breathing room for valuable and robust speech.

VI

The Student Did Not Waive Her Free-Speech Rights

1. The school had a rule stating: “please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced; this includes foul language and inappropriate gestures.”
2. The plain language of the rule suggests that it applies only at games, fundraisers, and other events.
3. The rule would not cover speech or a post the snapshot unconnected with any game or school event and before the cheerleading season even began.
4. A student would not believe she was waiving all rights to insult the school once safely off-campus and in the world at large. In fact, the rule doesn’t say anything about not being able to use foul language or inappropriate gestures away from school.
5. The school had another rule saying that participation on an athletic team or cheerleading squad meant that the participants could not tarnish the school in any manner and that they would be subject to discipline if they did so. However, that rule fails for two reasons. First, it applies only during the sports season, but the student in this case posted her post after the previous season had ended and before practices for the next season began. Second, the language of the rule does not give clear markers applying where a student behavior would tarnish the school’s image in any manner. Such language is too dependent on the whims of school officials to give rise to a knowing and voluntary waiver of the student’s rights.
6. The primary responsibility for teaching civility rest with parents and other members of the community.
7. As arms of the state, public schools have an interest in teaching civility by example through persuasion and encouragement, but they cannot leverage the coercive power to do so. Otherwise, school administrators would be given the power to quash student expression deemed crude or offensive, which far too easily become the power to censor valuable speech and legitimate criticism.
8. Enforcing the Constitution’s limits on upholding free-speech rights creates a deeper and more enduring version of respect for civility and the hazardous freedoms that is our national treasure and the basis of American national strength.

VII

Concurring and Dissenting Opinion (Judge Ambro)

1. Judge Ambro agrees that the student prevails but, he disagrees with the majority holding that schools do not have the authority to regulate student speech done off-campus where such speech substantially disrupts the work and discipline of the school.
2. This case is the first Circuit to hold that Supreme Court jurisprudence does not apply to off-campus speech. No other Circuit has come up with such a categorical assertion.
3. The majority decision leave too many questions unanswered, such as: 1) how does the holding apply to off-campus racially charged student speech?; 2) can a school discipline a student who post off-campus Snapchat’s reenacting and mocking the victims of police violence where those Snapchat’s are not related to school, not taken a posted on campus, do not overtly threatened violence, do not target any specific individual but yet provoke significant disruptions within the school?

VIII

Thoughts/Takeaways

1. This case is likely to go to the United States Supreme Court considering how the Circuits are all over the place. As mentioned at the very top of this blog entry, we now have a new Associate Justice on the Supreme Court. I have absolutely no idea how the United States Supreme Court with its new configuration will deal with this issue. This case doesn’t necessarily break down into convenient ideological lines.
2. Even with this decision, a public school’s reach may still extend to off-campus speech where the speech involves: 1) a school sponsored form; 2) use of the school brand; or 3) school owned or operated online platform.
3. I can see how the Third Circuit could say that the reasonable foreseeability test and the nexus test are not workable approaches. For example, in the world of Internet accessibility litigation, cases are all over the place as to what constitutes a sufficient nexus.
4. Off-campus speech per this decision is speech done outside school owned, operated, or supervised channels that is not reasonably interpreted at bearing the school’s endorsement.
5. The decision is very policy driven, which is not something you see all the time and certainly not to this extent.
6. Unclear as to what “reacting in a disruptive manner,” means.
7. Regardless of where the speech occurs, threatening violence and engaging in harassment are still off-limits.
8. Broad restrictions on speech going to the image of the public school are going to be difficult to enforce.

It will be interesting to follow how this case shakes out at the United States Supreme Court.