UPDATE: The U.S. Supreme Court has agreed to hear the case of a Pennsylvania public high school student who was punished by her school after she cursed her cheer team on Snapchat on a Saturday night while off campus. Legal experts and educators have watched the case, B.L. v. Mahanoy closely — the high court’s decision will give guidance on student free speech rights on social media, and if public schools are constitutionally within their rights to punish student speech that takes place outside of school hours and grounds. This issue has become even more pressing during the COVID-19 pandemic as schools have moved teaching out of the classroom and onto the internet.
“The question presented recurs constantly and has become even more urgent as [the pandemic] has forced schools to operate online,” said attorneys for the school district, in a court-filed brief. “Only this court can resolve this threshold First Amendment question bedeviling the nearly 100,000 public schools.”
In June, the 3rd Circuit Court ruled in favor of the student (see below).
Oral arguments will be held in April 2021.
This will be among the Supreme Court’s first cases since the death of liberal justice Ruth Bader Ginsberg this past September.
7/16/2020 — Federal appeals court ruling affirms students’ off-campus First Amendment rights
PENNSYLVANIA — A high school student was kicked off the cheerleading team for cursing the team on Snapchat. She filed a lawsuit. A federal appeals court’s ruling is a major step toward securing First Amendment rights for students in person and online when they’re off campus.
In B.L. v. Mahanoy Area School District, the Third Circuit Court ruled on June 30, 2020 that students are afforded the same rights as everyone else when they aren’t on school grounds. That means students in Pennsylvania, Delaware, and New Jersey can’t be punished by their schools for off-campus (including online) speech whose means of publication is not officially tied to school.
The Mahanoy Area School District’s Superintendent Joie Green referred the Student Press Law Center to their attorney Michael Levin, who did not respond to multiple requests for comment.
Levin told Education Week he plans to talk with the school district about appealing the Third Circuit’s decision to the Supreme Court.
B.L. posted the snap she was punished for on the weekend at a convenience store, but her school still suspended her from the team based on their belief that the post was “negative,” “disrespectful,” and “demeaning,” according to an American Civil Liberties Union (ACLU) press release.
ACLU Pennsylvania Senior Staff Attorney Sara Rose tried the case against the school district.
“I think [this ruling] is the most student speech-protective decision in the country right now,” Rose said. “When you censor students in school when they’re just learning about their rights, they aren’t going to know how to fight for their rights out of school. So we were very pleased with the decisions the Third Circuit made.”
The SPLC was among the organizations that filed an amicus brief in the case.
The standard set by Tinker v. Des Moines Independent Community School District (1969) said students have the right to speech as long as it does not cause a substantial disruption. Student Press Law Center Senior Legal Council Mike Hiestand said that this standard is good for in-school speech, but students should have even broader rights outside of school. He said students should be afforded the same protections as everyone else when it comes to off-campus expression.
Hiestand said applying the Tinker standard, or something even more restrictive, to student expression that takes place outside of schools unfairly limits the rights of students, making them “second class citizens in terms of their speech.”
“This decision says that that’s not the case. Young people are citizens and they are entitled to the same rights as everyone else outside of school,” Hiestand said.
While Hiestand says this decision likely won’t affect school sponsored student media, independent student journalists’ jobs just got a lot easier. Based on this decision, student journalists publishing online and off campus independently cannot be disciplined for their speech about their school.
Benefits for administrators
Rose said that this decision does not render school officials powerless, their arm just no longer extends to off-campus speech simply because the internet allows it to be seen on-campus.
“The rationale for the Supreme Court decision on Tinker was that schools need to be able to carry out their job of educating students in school,” Rose said. “But when you look outside of school, there is no basis for punishing students for their speech when there’s little to no way to cause a disruption.”
Hiestand also said that this ruling actually lets school officials off the hook by limiting what they’re liable for in terms of student speech.
“I’ve always thought administrators jobs were hard as is. Then when you add monitoring student speech outside of school, it seems like way too much,” Hiestand said. “I think this does provide a little bit of cover to school officials. It allows them to say ‘this isn’t my job.’”
History of students’ internet speech rights in Pennsylvania
In two other similar cases in the Third Circuit in 2006 and 2007, both argued by ACLUPA, the court ruled in favor of student speech.
In the first case, Layshock v. Hermitage School District, the Third Circuit ruled that a student could not be prevented from attending school for creating a parody online of his principal. The second case, J.S. v. Blue Mountain School District set the precedent that middle school students could not be suspended for creating a parody profile on MySpace.
Both of these cases affirmed that students enjoy their First Amendment rights outside of school. Now, B.L. v. Mahanoy Area School District will join these cases as important rulings in support of students.
‘It’s not over’
Both Hiestand and Rose say the Third Circuit Court ruling is a big step in the right direction for student speech, but that this isn’t the end-all be-all.
“It’s not over, this is a Third Circuit decision so it’s only a binding law within the states in the third circuit,” Hiestand said. “I don’t think that this issue has ultimately been decided, but I think it will be very influential and helpful to other courts who are trying to make these decisions.”
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