Free Speech & Public Schools

Adam Shelton · January 22, 2021

Some of the most interesting and difficult questions in First Amendment law arise in the context of public schools. The reason is simple: Public schooling is one of the few situations in which people are forced to spend time in a government-controlled forum. Not surprisingly, students forced to attend public schools want the same freedom to express themselves that adults take for granted in our day-to-day lives, while schools want to maintain an environment conducive to learning. And because public schools are bound by the First Amendment, these conflicting desires often lead to litigation.

This debate is headed to the Supreme Court later this year in Mahanoy Area School District v. B.L. There, the Court will decide whether a school can punish a student for using explicit language on Snapchat, on the weekend, outside any school event.

Cheerleading and Snapchat: What Could go Wrong?

This case all started when a female student, a rising sophomore (as a minor referred to only as “B.L.”), failed to make the varsity cheer team. Instead, she was relegated to the junior varsity cheer team for at least another year. To make matters worse an incoming freshman made the varsity team. The anger over not making varsity, on top of stress over examinations and unhappiness with her private softball team, led her to vent on Snapchat on a Saturday. The photo she took to express her anger was captioned with the words “F**k school f**k softball f**k everything.” The photo was visible to a couple hundred of her “friends,” some of whom took screenshots of the picture and showed it to the cheer coaches.

The cheer coaches determined the language violated team and school rules. They suspended her from cheer for the rest of the year. She then sued the school and the school district arguing that her punishment violated her First Amendment free speech rights. She argued that because her speech took place outside school hours, outside any school sponsored event, and not on any technology owned by the school, she could not be punished for her speech. Fortunately, the district court and the Third Circuit agreed.

Black Arm Bands & Disturbances

The starting point for the Third Circuit’s decision is a 1969 Supreme Court case involving student protests: Tinker v. Des Moines Independent Community School District. There, three students were suspended from school for wearing black arm bands, which they wore to protest the Vietnam War. The school had prohibited the wearing of these arm bands out of a fear that it would cause a disturbance to the learning environment of the school and the other students.

In a 7-2 decision, the Supreme Court built on earlier decisions like Meyer v. Nebraska, Pierce v. Society of Sisters, and West Virginia State Board of Education v. Barnette which held that parents, teachers, and by default, students did not lose their constitutional rights when they cross the school gate. In Tinker the Supreme Court extended that principle specifically to students and their right to speak freely. But the Court did note that there are some limits to the exercise of rights because of the nature and role of public schools. The key was that the students’ actions did not interrupt school activities and “no disturbances or disorders on the school premises in fact occurred.”

The Supreme Court has revisited this holding and clarified it over the years. In Bethel School District No. 403 v. Fraser, the Supreme Court held that a school could punish a student for employing explicit sexual metaphors in a nominating speech at a school assembly. The Court distinguished this case from Tinker because it involved vulgar and lewd speech, which is more likely to disrupt school activities than a silent and passive political statement. In Hazelwood School District v. Kuhlmeier, the Supreme Court heard a challenge to a public high school prohibiting the publication of two articles, one about teen pregnancy containing interviews with pregnant teens at the school and one about divorce which contained an interview with a student critical of her parents getting divorced, in a school newspaper run and edited by students. The Court, in holding that a school could prohibit the publication of the articles, distinguished Tinker because this case required the school to promote speech while the situation in Tinker required no affirmative action on behalf of the school for the students to protest. Finally, in Morse v. Frederick the Supreme Court held that a school was well within its rights to suspend a student for ten days for waiving a “BONG HiTS 4 JESUS” banner at an off-campus school-sanctioned rally for the Olympic Torch making its way to Utah. The Court distinguished this case from Tinker because the message was drug related and because it occurred at a school-sanctioned event.

The Third Circuit’s Reasoning

The Third Circuit read Tinker as creating only a narrow exception to general First Amendment requirements. The court explained that under Tinker, a school must show that there is a “significant fear of disruption” to restrict a student’s speech. That is, the restrictions have to be limited to the “school context.”

But what is the school context? Previously, whether the speech occurred “off-campus” or “on-campus” was an important, but not controlling, feature. But the physical boundaries of the school are not synonymous with “on and off campus.” If they were, students would be free to say whatever they wanted on a field trip, no matter how disruptive. Instead, the on-campus/off-campus distinction has more to do with the amount of control the school has over the event or whether the school has sponsored the place or activity where the speech takes place. Thus schools cannot “reach into a child’s home and control his/her actions to the same extent that it can control that child when he/she participates in school sponsored activities.”

Given this, the Third Circuit had a rather easy time determining that the girl’s speech on Snapchat fell outside what the school could control. The court distinguished this case from the Supreme Court cases expounding on Tinker by the simple fact that this situation was completely disconnected from school: The picture as sent on a weekend, outside any school activity, and not on any technology the school controlled. The government argued that the photo was still likely to cause disturbances or disorders and that Tinker should apply to off campus just as it would to on-campus speech.

Breaking with other Courts of Appeals, the Third Circuit held that Tinker does not apply to off-campus speech. The court explained that Tinker provided a small exception that allows the government to regulate speech. But holding that the exception applied in a situation such as this, when the snap was sent at a time, place, and manner completely divorced from school and that did not threaten violence against anyone at school would not be a “small exception.”

The government appealed and the Supreme Court granted certiorari. The only question now on appeal is whether the Tinker exception applies to off-campus speech. That is, whether “public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applied to student speech that occurs off campus.” This was a consequential case and question because of the development of communication technologies previously unthinkable when Tinker was handed down in 1969. Now, though, this case has taken on an even greater importance because of the COVID-19 pandemic and its impacts on education.

COVID-19 & Virtual Schooling

Because of COVID-19, many public schools have switched to being completely virtual. That is, no school takes place “at school.” Other schools have switched over to a more hybrid form where some classes take place in the building itself while others take place at home. Because of this, the implications from the Supreme Court’s decision here could be wide-ranging.

Students now spend much of their traditional “school time” at home. And even before the pandemic, many students, particularly in middle school and high school, were receiving some instruction remotely and online. So it is easy to imagine situations in which a school will be constitutionally permitted to reach into a student’s home and punish a particular student for words spoken from the privacy of their own room. This is a precarious situation for free speech.

To be sure, there may be situations when a school would be well within its rights to punish students for what they say; for example, students swearing, harassing, or threatening students during virtual classes. Even unoffensive speech could likely be punished if it were truly disturbing the actual class, like singing or talking out of turn. Speech threatening violence against other students or teachers more generally would similarly be punishable. But the Supreme Court must be careful with this case due to the changes in where schooling takes place.

In Tinker and Mahanoy the Supreme Court and the Third Circuit respectively reaffirmed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That language now needs some tinkering. Rather, it should be students do not shed their constitutional rights to freedom of speech or expression when they log on to their virtual school, or when they log on to anything else during their private time. Schools certainly have an interest in preserving an environment suitable for education. But students also have a right to speak freely, especially in their own homes. The Supreme Court should keep this changed reality in mind when they, hopefully, affirm the Third Circuit later this year.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement