The United States Supreme Court famously declared in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Only when a student's speech causes — or reasonably might be projected to cause — a "substantial disruption of or material interference with school activities" may a school impose discipline on such speech.
Since the Tinker decision, the Supreme Court has created three main exceptions to the rule by permitting schools to discipline students for: 1) utilizing vulgar and offensive terms and sexual innuendo during an on-campus event, 2) speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns; and 3) speech conducted during a school-sponsored event that promotes illegal drug use.
One area the Supreme Court has failed to address since Tinker, however, is the question of off-campus student speech. As a result, as illustrated by two recent cases — B.L. v. Mahanoy Area School District, 376 F. Supp. 3d 429 (2019) and Longoria v. San Benito Independent Consolidated School District, 942 F.3d 258 (5th. Cir., 2019) — there is some confusion as to the actual legal standard to apply to off-campus speech.
In the first case, B.L., a student at Mahanoy Area High School in Mahanoy City, Pa., who was frustrated that she did not make the varsity cheerleading team, took a photo of her and a friend, middle fingers raised. On top of the photo, B.L. added the following text [character omission AB's]: "f___ school f___ softball f___ cheer f___ everything." B.L. then posted the captioned photo on her private Snapchat account, where it could have been viewed briefly by about 250 of her friends, many of whom were fellow cheerleaders and students at district schools.
When her junior varsity cheerleading coaches heard about B.L.'s Snapchat, they suspended her from the cheerleading team for one year. B.L. and her father appealed the suspension to the school board, which declined to get involved in the suspension. As a result, B.L., through her parents, filed suit in Federal District Court claiming that the school district actions were a violation of her First Amendment rights. In particular, B.L. argued that a public school could not lawfully remove her from an extracurricular activity for uttering profanities while off school grounds on the weekend.
In reviewing whether B.L.'s Snapchat was protected under the First Amendment, the District Court examined three issues. First, it held that the student's speech must be of the kind that is protected. Second, the school must have punished her, or took some type of action that would deter a person of ordinary firmness from exercising her constitutional rights. Third, there must be a causal link between the student's protected speech and the school's punishment or sufficiently adverse action.
In examining whether B.L.'s speech was protected, the District Court noted that under the Tinker test, as long as the students' speech did not materially and substantially disrupt the work and discipline of the school, or in the view of reasonable school officials, did not reasonably cause future material and substantial disruption at school, the speech was protected. As for the exceptions to the Tinker test, the court noted that each one of them involved either in-school speech or speech at a school sponsored off-campus event.
Applying the Tinker test, the court held that schools cannot punish a student for off-campus speech that is merely profane. In particular, the court noted that the exception to Tinker that allows schools to punish profane language on school grounds cannot be extended to justify a school's punishment for use of profane language outside the school, during non-school hours. Nor can Tinker justify the district's punishment of off-campus speech, even if the district rephrases its concern as "disruption of the educational mission" of the team or the school. If that were the law, the court held, public schools would possess absolute authority over their students and become enclaves of totalitarianism. In addition, the District Court noted that while the Supreme Court has failed to provide clarification with regard to student speech in the digital era, the Third Circuit has held that student speech uttered off campus is not rendered "on-campus speech" simply because it eventually reaches inside the school.
The District Court also held that the fact that this case involved an extracurricular activity (cheerleading) does not change the result. While student-athletes can expect a greater degree of regulation than students generally, and the same speech that is protected in the classroom might not be on the playing field, the court held there is nothing unique about athletics that would justify a broader application of Tinker to a student-athlete's off-the-field profanity. Therefore, coaches cannot punish students for what they say off the field if that speech fails to satisfy the Tinker standards. Since the undisputed evidence in the case shows the school district failed to meet the Tinker standards, B.L.'s speech was protected, and the school district violated B.L.'s rights when she was dismissed from the cheerleading squad.
The facts in the second case are similar to those in the first. The student, M.L., was a member of her school's cheerleading team when her coaches discovered a series of posts on her personal Twitter account containing profanity and sexual innuendo.
As part of her participation on the team, M.L. and her mother were both required to sign the San Benito High School Cheerleading Constitution, which requires cheerleaders to maintain "appropriate" conduct on their personal social-media accounts. After the posts were discovered, M.L. and her mother were called into a meeting with her coaches. They were given a letter explaining that M.L. was being dismissed from the team because she had accumulated several demerits for posting material on her Twitter account in violation of the Cheerleading Constitution.
M.L. and her mother filed a lawsuit against the school district and employees challenging her dismissal from the team on First Amendment free speech grounds. In particular, M.L. argued that her off-campus Twitter posts, which were not threatening or directed toward the school community, did not come within the disciplinary reach of school officials. While the District Court agreed that the complaint stated a legally sufficient First Amendment claim against the individual defendants, it held that there was no clearly established law that would have made it obvious to the defendants that extracurricular discipline was subject to the same level of constitutional protection as other forms of school-based discipline. As a result, the court granted qualified immunity to the individual defendants and dismissed M.L.'s complaint.
On appeal, M.L. argued that Tinker and the other Supreme Court cases on student speech clearly established the unconstitutionality of the defendants' actions. In looking at student free speech cases, however, the Fifth Circuit noted that all of the Supreme Court's school speech cases pertain to on-campus speech or speech conducted during a school-sponsored activity. Therefore, the Supreme Court has yet to articulate a generally applicable standard for the discipline of all off-campus speech, including the aforementioned tweets. The Fifth Circuit also noted that it has specifically declined in the past to adopt a specific rule that would apply to all circumstances under which off-campus speech may be restricted. The Fifth Circuit recognized that its approach to off-campus student speech was contrary to the decisions in other circuits, which have decisively held that a school may not discipline a student for "off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school."
Therefore, the Fifth Circuit held that since neither it nor the Supreme Court had articulated a generalized rule that could have placed defendants on notice, the court declined to find that M.L.'s free speech rights were clearly established at the time that she was dismissed from the cheerleading team. In the absence of a case providing such a general rule, the Fifth Circuit affirmed the district court's holding that the individual defendants were entitled to qualified immunity.
Conflicted courts The two cases above illustrate the conflict between the circuits concerning the right of schools to prohibit off-campus speech. In the majority of circuits, the courts have held that as long as off-campus speech does not threaten violence to teachers and other students, school officials are not allowed to discipline the student simply because an administrator considers the speech offensive, harassing or disruptive.
Such speech, the courts have generally held, is entitled to First Amendment protection. The extent of that protection, the courts have ruled, may be "diminished" if the speech is "composed by a student on campus, or purposefully brought onto a school campus." However, as a rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials.
While the Fifth Circuit, in providing guidance for future cases, held that "a broad swath of off-campus student expression" remains fully protected by the First Amendment, it seems to have concluded that because of the pervasive and omnipresent nature of the internet, anything posted on social media is speech directed toward the school community. Therefore, school officials are in their right to police speech if it fails the Tinker test. Also, contrary to most other circuits, the Fifth Circuit has taken the extraordinary position that being suspended from extracurricular activities is not the same as school itself. Therefore, according to the court, students do not have the same constitutional safeguards with regard to freedom of speech.
This article originally appeared in the June 2020 issue of Athletic Business with the title "Off-field speech protections in the social media age." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.