A Turning Point for Student Speech?

By Corey Friedman

June 26, 2021 6 min read

Students are largely free to speak their minds off campus without fear of school punishment, even if social media's boundless reach blurs the line between living room and classroom.

With a few caveats, that's the gist of a highly anticipated Supreme Court ruling handed down Wednesday in Mahanoy Area School District v. B.L., a case that tested the limits of public school discipline.

An 8-1 majority held that Mahanoy Area High School in Pennsylvania violated Brandi Levy's First Amendment rights when it kicked her off the junior varsity cheerleading team for raising her middle finger and dropping the f-bomb in a weekend Snapchat story shared with a friend group that included some teammates.

Justices dodged the question of whether Tinker v. Des Moines, the 1969 case that serves as a lodestar for on-campus student speech rights while allowing schools to maintain order, applies to minors in their private lives. The 3rd U.S. Circuit Court of Appeals, which also ruled in Levy's favor, found Tinker's tolerance for discipline too stifling for teenagers in society at large and sought to tether it to physical school buildings.

"Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus," Justice Stephen Breyer wrote in the majority opinion. "The school's regulatory interests remain significant in some off-campus circumstances."

The court cites examples including threats aimed at teachers or students, severe bullying and harassment, homework and participation in online school activities. Breyer noted that the list isn't exhaustive, and justices chose not to establish a bright-line test for when schools can step in.

They did, however, express general skepticism toward such intervention when students are under their parents' care.

"Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility," Breyer wrote.

The majority held that administrators must meet "a heavy burden" before trying to rein in students' political or religious speech outside the school environment and noted that public schools, as "nurseries of democracy," have an interest in protecting unpopular expression rather than punishing it.

A nearly unanimous court narrowed school officials' path to policing speech in students' homes, but left the door open a crack rather than slamming it shut.

Standing alone in dissent, Justice Clarence Thomas sought to tear that proverbial door off its hinges, favoring an expansion of schools' authority to monitor and pass judgment on students' social media posts. Out of step with many lower courts in addition to all of his colleagues, Thomas doesn't pose a serious threat to continued gains for student speech rights.

In a concurring opinion, Justices Samuel Alito and Neil Gorsuch indicated the court's jurisprudence should tilt further in students' favor, stressing public schools' role as an arm of state government. Alito closed with a warning to administrators that suggested the court will keep them on a tight leash.

"If today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory," he wrote.

Some free speech advocates shrugged off the ruling as a hollow victory that preserves the status quo and offers little in the way of new guidance. They should try seeing the glass as half-full.

Mahanoy is the first case since Tinker where the court's sympathies clearly rested with student speakers. The intervening five decades yielded only setbacks for young Americans' expressive rights.

In 1988, Hazelwood v. Kuhlmeier wrongly rubber-stamped administrative censorship of student-edited newspapers and yearbooks. And in 2007, Morse v. Frederick gave schools the ability to suppress speech even loosely interpreted as promoting illegal drugs, depriving an Alaska high-schooler's "Bong Hits 4 Jesus" banner of First Amendment protection.

Justices left some thorny questions unresolved, but Mahanoy may mark a turning point. The court laid down a breadcrumb trail it can follow in future cases to fortify students' rights. Even those crumbs are substantial enough to give school boards, superintendents and principals plenty to chew on.

Schools that needlessly interject themselves into students' off-campus conversations are less likely than ever before to find favor on the bench. That's something all supporters of free expression can cheer.

Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.

Photo credit: WFlore at Pixabay

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