Federal Appeals Court Rejects Student Discipline for Vulgar Off-Campus Message
A federal appeals court has overturned the school discipline of a student who posted a vulgar message on Snapchat and ruled for the first time that off-campus speech categorically falls outside the analysis of a landmark 1969 U.S. Supreme Court decision on student expression.
A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled in favor of a Pennsylvania high school student who posted a message on Snapchat that said "F**k school ... f**k cheer f**k everything" after she was placed on the junior varsity cheerleading team instead of the varsity squad in her sophomore year, amid some other frustrations she had recently experienced.
The Snapchat message was posted on a Saturday in the spring of 2017 by a Mahanoy Area High School student identified in court papers as B.L. While "snaps" are self-deleting after a short time, a teammate of B.L. took a screenshot of her message, and it came to the attention of her coaches, who said it violated several team and school rules to show respect for the team and avoid foul language and disrespect for teammates and coaches. B.L. was removed from the JV team for the season, a decision upheld by administrators and the school board.
The student and her parents sued the school district, alleging that her removal from the team violated the First Amendment free-speech clause and that the rules were overbroad and unconstitutionally vague.
The student won in a federal district court, which award her $1 in nominal damages plus attorneys' fees. In its June 30 decision in B.L. v. Mahanoy Area School District, the 3rd Circuit panel affirmed the district court.
"To be sure, B.L.'s snap was crude, rude, and juvenile, just as we might expect of an adolescent," Judge Cheryl Ann Krause wrote for the court. "But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so."
The ruling was unanimous in the bottom-line judgment, though one judge dissented from the majority's view about the application of the Supreme Court's landmark student speech decision in Tinker v. Des Moines Independent Community School District.
The Tinker court ruled for students who had worn black armbands to protest the Vietnam War, and thus upheld free speech rights for students while in school. But the decision said school officials could regulate speech that "would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
The 3rd Circuit decision notes that other federal appeals courts have applied Tinker to off-campus speech, particularly emerging online expression, in various ways. But that has meant some discipline of student's online messages expressing violent thoughts or criticizing school administrators has been upheld under Tinker.
The 3rd Circuit itself is not operating on a blank slate. In a pair of decisions in 2011 by the full 3rd Circuit, the court ruled that students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.
Those decisions, in Layschock v. Hermitage School District and J.S. v. Blue Mountain School District, have been widely discussed in education law circles since then, and the Supreme Court declined to take up the cases.
In the new decision, the 3rd Circuit panel points out that the full appellate court had only assumed in one of the 2011 cases (J.S.) that Tinker applied to off-campus speech, but did not decide that issue. (The Tinker standard was not as much of an issue in the Layschock case.)
"Nearly a decade later, however, we see not only that social media has continued its expansion into every corner of modern life, but also that no dominant approach has developed" on the application of Tinker, and "the time has come for us to answer the question," Krause said.
"We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur," Krause said.
Such a rule provides greater clarity to students and school officials, the court said.
"To enjoy the free speech rights to which they are entitled, students must be able to determine when they are subject to schools' authority and when not," the opinion says.
School officials will still have "comprehensive authority" over student speech in the school enviornment, the court said.
The court held that B.L.'s Snapchat message was not subject to regulation under Tinker or a 1986 Supreme Court decision, Bethel School District No. 403 v. Fraser, that upheld the discipline of a student who made a vulgar speech at a school assembly.
The court rejected the school district's argument that vulgar language can be regulated to a greater extent than other speech outside of school. It also held that B.L. did not waive her First Amendment free speech rights by signing waivers to join an extracurricular team, holding that various rules cited by the school district could not be enforced against off-campus speech.
Judge Thomas L. Ambro wrote a separate opinion, saying he concurred in the judgment because the 3rd Circuit's earlier student speech decisions compelled that result. He even agreed that B.L.'s Snapchat message could not be regulated by school officials because it was created on her own phone, on her time, away from school, and did not mention the school or feature team uniforms or logos.
Ambro said his colleagues did not need to make a broad ruling about Tinker and off-campus speech to decide the case. He worried about how the decision might apply to off-campus, racially tinged speech.
"Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school?" Ambro said. "Hard to tell."
Michael I. Levin, a lawyer representing the Mahanoy Area district, said he planned to consult with his client about a possible appeal to the Supreme Court.
Francisco M. Negrón Jr., the chief legal officer of the National School Boards Association, which filed a friend-of-the-court brief in the 3rd Circuit in support of the school district, said he was particularly disappointed about the court's analysis of extracurricular activites, where "participation is a privilege."
"To suggest that a school cannot regulate student conduct as a requirement for participation in such activities departs from long-standing judicial deference to the role of educators, but also fails to recognize the reality of the role schools play in keeping children safe and inculcating social values," Negrón said.
Sara Rose, a senior staff attorney for the American Civil Liberties Union of Philadelphia, who argued B.L.'s case, said in a statement, "Our client was out of school, on her own time, and not involved in a school activity when she made the Snapchat post, and the school went well beyond its power in disciplining her for her speech."
Justin Driver, a professor at Yale Law School and the author of a 2018 book about student rights under the U.S. Constitution, said the facts of the case were "delicious" and the 3rd Circuit's opinion was strongly pro-student.
"The Supreme Court has repeatedly ducked the question of off-campus speech, even though the lower courts—and educators—desperately need some guidance on this incredibly common question," Driver said.