As minors under the jurisdiction of their schools, high school, and elementary students do not have an unlimited right to free speech. Legally, these institutions have a right to regulate speech that might prove disruptive to the learning environment. But what happens when the “disruptive” speech occurs off-campus? This was the question before the Supreme Court over the last several months as they heard arguments in Mahanoy Area School District v. B.L.

The Mahanoy case involved a high school cheerleader named Brandi Levy, who after failing to make the varsity squad, posted a message on the social media app Snapchat. The post, which was created off-campus, featured Levy and a friend raising their middle fingesr to the camera as well as a vulgar caption. As a result of this post, Levy was suspended for a year from the cheerleading program. Levy appealed her suspension, and the appeals process eventually sent the case to the Supreme Court, which heard oral arguments on April 28, 2021.

What's at Stake

The First Amendment rights of students are defined by several precedents, the most significant of which is the 1968-69 case Tinker v. Des Moines Independent Community School District. This case established the so-called “Tinker test,” by which courts weigh the competing interests of the school's need to prevent disruption and the student's First Amendment rights. This test becomes more complicated when the speech in question occurs off-campus, as it did in Levy's case.

On June 23, 2021, the Supreme Court ruled 8-1 in favor of Levy, claiming her First Amendment rights had been violated. However, their decision was a narrow one. While they ruled that, in this specific case, Levy's First Amendment rights had been violated, they also stated that Tinker did not always prevent schools from regulating off-campus speech. Overturning the ruling of the lower Third Circuit Court, the Supreme Court ruled that Tinker did extend to certain kinds of off-campus speech. For example, schools may have a special interest in regulating such speech as bullying and the issuing of personal threats, even when it did not occur on school grounds. The Court, however, did not provide any specific guidance on when a school can constitutionally regulate a student's off-campus speech.

What's Next

While the Court's ruling in Mahanoy Area School District v. B.L. was a victory for free speech, it was a limited one that raised as many questions as it provided answers. The ruling did little to make the line between permissible and non-permissible speech any less blurry. If you or your child face discipline from a school because of something you or they have said, either on or off campus, don't wait until it's too late. Joseph D. Lento from the Lento Law Firm has handled countless free speech cases. Call him today at 888-535-3686.