Today, the United States Supreme Court issued its highly anticipated decision in Mahanoy Area School District v. B.L., finding that a high school violated a cheerleader’s First Amendment rights when it disciplined her for a short, profane Snapchat post she created off-campus and on a Saturday. The case involves a public school, to which First Amendment restrictions apply. But private high schools in California have to consider the ramifications of the case as well. California’s “Leonard law,” passed in 1992 (Education Code, section 48950), affords statutory free speech rights to high school students in private schools (and to a limited extent in private religious schools). Case law interpreting how the First Amendment applies to public schools is important in deciding what statutory free speech rights high school students in private schools can assert.
In Mahanoy, a Pennsylvania public high school student, frustrated at her lack of ability to advance in cheerleading, off campus and on a Saturday posted to Snapchat a picture of herself with the caption (spelling out the offending words): “F ____ school f_____ softball f_____ cheer f______ everything.” The image could be seen by about 250 people, including fellow students and cheerleaders. The coaches learned of the post and decided it violated team and school rules. They suspended B.L. for a year from the cheerleading team.
In November 2019, the U.S. Court of Appeals for the Third Circuit held as a matter of first impression that existing legal rules which allow schools to punish students for sufficient actual or threatened disruption of the learning environment do not apply at all to “off-campus speech.” Students thus cannot be disciplined for such speech. The court described this as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” The Third Circuit found that B.L.’s post, created off campus on a Saturday, could not be the subject of discipline by the school district.
The U.S. Supreme Court’s decision today disagrees with the Third Circuit’s bright-line rule shielding any “off-campus speech” from discipline. Instead, the majority opinion by Justice Stephen Breyer articulated a different general standard on how to handle off-campus speech. The opinion concluded that, as it turned out, the student B.L. won her case under these standards as well.
The Supreme Court began its discussion of standards by re-stating the general rule from its prior precedent on when a school can, consistent with the First Amendment, discipline a student for on-campus speech. It can do so for speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”
The Court then explained that the ability to discipline under this standard for off-campus speech can apply in certain circumstances. The Court cited “serious or 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, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”
The Court suggested that in general, speech off-campus should be more likely to enjoy First Amendment protection than on-campus speech. The Court described three typical features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” to allow discipline. First, in relation to off-campus speech, schools will rarely stand in “loco parentis,” i.e., “standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them.” The Court thereby suggested discipline is more appropriate in circumstances in which the school stands “in loco parentis.”
Second, regulating off-campus speech would mean responsibility to monitor students 24-hours a day, thus encroaching on their ability to express themselves. On this point, the Court emphasized as guidance for future cases: “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
Third, the Court stated that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” The Court explained:
America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.
The Court proceeded to apply these standards to the student B.L.’s case, ultimately concluding that the First Amendment protected her speech.
School’s will need to weigh the Court’s opinion in light of relevant California law. California’s Leonard Law provides that “a private secondary school shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” (Educ. Code section 48950(a).) The standard is relaxed for religious schools. The Leonard Law provides: “This section does not apply to a private secondary school that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization.” (Educ. Code section 48950(c).)
California private schools will need to consider the Court’s ruling when disciplining high school students for off-campus conduct. Religious schools will further need to assess whether the off-campus speech violates its religious tenants, which will provide leeway not afforded to secular schools. Finally, today’s decision will not restrict California private schools’ ability to discipline students who are not yet in high school.
Only about once in a decade does the U.S. Supreme Court decide a case on First Amendment rights of students. This year’s Mahanoy case provides welcome guidance in this area of the law, and will serve as an important tool in interpreting student free speech rights in public schools and also California private schools.
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.
