June 29, 2021

By Attorneys Carrie Weber and Elizabeth Heffernan

Last week, the United States Supreme Court issued a decision in Mahanoy Area School District v. Levy, a student free speech case involving important First Amendment issues for school districts. Primarily the case considered whether, and to what extent, public school officials may regulate student speech that occurs off campus.

Facts of the Case 

B.L., a high school cheerleader, failed to make the varsity squad and shortly after posted two images on Snapchat expressing frustration with the school and the cheerleading squad. These images included vulgar language and gestures. The images spread to other students, a cheerleading squad coach, and other cheerleaders on the team. Several cheerleaders approached the coaches upset about B.L.’s posts. The posts were also discussed briefly in an Algebra class taught by a cheerleading coach. The school district suspended B.L. from the junior varsity cheerleading squad for the upcoming year because it determined the posts used profanity in connection with an extracurricular activity and therefore violated team and school rules. B.L. filed suit, claiming that suspension from the cheerleading squad violated her First Amendment rights.

The Supreme Court agreed with the cheerleader. The Court concluded that while a school district may have a special interest in regulating some off-campus student speech, the school district’s justifications in this case were not strong enough to overcome the cheerleader’s Constitutional right to free speech.

Legal Framework

In 1969, the Supreme Court set a framework for analyzing student First Amendment issues in Tinker v. Des Moines Independent Community School District in 1969. In Tinker, the Court held that public school districts have a special interest in regulating speech on school grounds that (1) materially disrupts schoolwork, (2) involves substantial disorder or disruption in the school environment, or (3) invades the rights of others. In Mahanoy, the Supreme Court considered whether the same standard expressed in Tinker also applies to student speech off school grounds.

The Court determined that the Tinker standard still applied but declined to make a bright-line rule separating on-campus and off-campus speech. The Court noted that the distinction could shift given a student’s age, the nature of the off-campus activity, or the impact on the school environment.

However, the Court identified “three features” of off-campus speech that can diminish a public school district’s special interest in regulating that speech.

  1. First, off-campus speech typically falls within the zone of parental responsibility, rather than school responsibility. Rarely does a school stand in loco parentis when student speech is off-campus.
  2. Second, from the student’s perspective, regulating both off-campus and on-campus speech essentially regulates ALL speech a student utters during a full 24-hour day. Regulations of off-campus speech should be treated with more skepticism because if a school is able to regulate off-campus speech, it may mean that a student cannot engage in that kind of speech at all. The Court stated that especially in the case of religious or political off-campus speech, the school will have a “heavy burden to justify intervention.”
  3. Third, the public school district has an interest in protecting unpopular expression, particularly when it takes place off-campus. The Court stated a public school is a “nursery of democracy” that only works if we protect the free exchange of ideas, including unpopular ideas.

Ultimately, the Court held that, based on these three factors, the ability of schools to regulate off-campus speech is diminished compared to on-campus speech.

Applying these factors, the Court concluded B.L.’s speech was protected. Although B.L. used vulgar language, she did not use the language in school, her words were not obscene, and they did not constitute fighting words. B.L. did not target any particular member of the school community, and her speech was transmitted over a private cell phone to only her private circle of Snapchat friends. Finally, there was not sufficient evidence to establish that the school’s purported interests of teaching good manners, preventing disruption of the school environment, and upholding team morale justified infringement upon B.L.’s right to free speech.

Impact in Iowa

Overall, this case will not cause a major shift in how Iowa schools currently handle off-campus free speech matters. However, it did provide us with additional guidance and a better framework to assist in determining what speech is entitled to protection. Direct evidence of a substantial disruption to the school environment continues to be an essential factor; it is not enough to show just a general fear or apprehension of disruption. A bedrock principle of the First Amendment—that speech may not be regulated just because it is unpopular—remains.

For those interested, Justice Alito wrote a concurring opinion that was joined by Justice Gorsuch, and Justice Thomas dissented. A full copy of the opinion, concurrence, and dissent are available at: 20-255 Mahanoy Area School Dist. v. B. L. (06/23/2021) (supremecourt.gov).

First Amendment matters are highly fact-specific. Please feel free to contact us with any questions regarding the implications of this case.

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Heffernan, Elizabeth


Weber, Carrie


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