Say What? Supreme Court Limits School District Regulation of Off-Campus Student Speech On Social Media
Author: Omer A. Khan, Attorney at Law
On June 23, 2021, the United States Supreme Court ruled that the Mahanoy Area School District (District) violated the First Amendment when it imposed a one-year suspension on a student from participation in her junior varsity cheerleading squad for comments made on the student’s social media account. The Court reasoned that since the posts were created off school grounds, outside of school hours, and there is no evidence the posts caused a substantial disruption to the school environment, the District did not have a substantial interest in regulating the speech.
In 2017 a 14 year old student learned she did not make her high school’s varsity cheerleading squad. On Saturday, the student posted a picture of herself and a friend with their middle finger raised and a profanity-laden caption attached to her Snapchat account. The student deleted the post in 24 hours, but not before the picture was viewed by 250 of her followers, including several of her coaches. The coaches reported the posts and the student was suspended from her junior varsity cheerleading squad for one year.
The student filed for a temporary restraining order in District Court for reinstatement to the cheerleading squad. The District Court granted the restraining order and subsequently granted the student’s motion for summary judgment. On appeal, the Third Circuit Court of Appeals affirmed the District Court’s decision. The school district appealed to the Supreme Court.
Students have constitutional rights at school, including the freedom of speech guaranteed by the First Amendment. However, school districts are permitted to regulate specifically enumerated categories of student speech, including speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” (Tinker v. Des Moines Independent Community School Dist. (1969) 393 U. S. 503.)
The Supreme Court noted that schools can regulate off-campus student speech when special characteristics were present. These include:
- Severe bullying or harassment targeting particular individuals;
- Threats aimed at teachers or other students;
- The failure to follow rules concerning lessons;
- The writing of papers;
- The use of computers;
- Participation in other online school activities; and
- Breaches of school security devices, including material maintained at school computers.
However, the Court noted that a school district’s efforts to regulate off-campus speech must face stricter scrutiny than on-campus speech, where a district is given substantial leeway under the First Amendment. The facts of this case did not present such special characteristics. The posts appeared outside of school hours from a location outside the school and the student did not identify the school in her posts or target any member of the school community with vulgar or abusive language. The content was posted through a personal phone to her private circle of Snapchat friends.
The Court also rejected the District’s argument that the school had a substantial interest in regulating the Snapchat posts. The District argued it had an interest in prohibiting students from using vulgar language to criticize a school team or its coaches but could not provide evidence of any other efforts to reduce vulgar language outside of the classroom. The District also argued that it was attempting to prevent disruption within the bounds of a school-sponsored extracurricular activity, but there was no evidence of such disruption outside of a few minutes discussion in a class and some irritation by team members. The District finally appealed to the need for team morale, but there was little evidence of such a decline; the cheerleading team continued activities regardless of the posts.
School districts must take caution when attempting to regulate a student’s social media account or punish a student for content that was posted, particularly when it is off-campus and outside of school hours. Such regulation must satisfy the elements above to justify regulation and enforcement. The Supreme Court listed these special circumstances and noted such a list is not exhaustive. Districts should consult with legal counsel to ensure social media regulation and enforcement is consistent with students’ free speech rights.