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Thursday, Jul. 15th 2021

THE REGULATION OF OFF-CAMPUS PUBLIC SCHOOL STUDENT SPEECH

Public school students, parents, teachers, administrators and school board members are now finally informed of the rules relating to an attempt by school officials to sanction or punish off-campus student speech which school officials find offensive. On June 23, 2021 the U.S. Supreme Court, in an opinion written by Justice Stephen Breyer, and joined by Justices Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett (with a sole dissent by Justice Thomas) upheld a federal trial judge’s ruling and the ruling of the 3rd circuit United States Court of Appeals in rejecting a school district’s suspension from the cheerleading squad of a student for posting vulgar and critical comments about her school and other students as a result of not being selected as a varsity cheerleader.

The student, B.L., acting through her parents, Lawrence and Betty Levy, maintained that off-campus “speech”, i.e. her Snapchat messages to her limited circle of Snapchat “friends” was not disruptive to the operations of her school, as has long been the jurisdictional basis for school officials to restrict and punish allegedly disruptive student speech. B.L.’s speech was an image of her and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.” Her imagery and words came to the attention of school officials who suspended her from the junior varsity cheerleading squad for the upcoming year. This punishment was upheld by the school’s athletic director, principal, superintendent, and school board. Next, the parents filed suit in federal court.

The conclusion reached by the 8-member majority of the Supreme Court (justices appointed by both Democrat and Republican presidents) in Mahanoy Area School District t v. B.L., is that while public schools may have a special interest in regulating some off-campus student speech, the alleged special interests of the school district in this case were not sufficient to overcome the student’s interest in free expression. Circumstances that may support and justify student speech restrictions include severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; 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.

The rationale offered to support the opinion involved three features of off-campus speech. First, the school district is not acting in a parental capacity (in loco parentis) when students are off-campus. Second, regulating off-campus speech would involve the full 24-hour day and result in potentially regulating all of that kind of speech expressed by a student. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when it takes place off-campus, because “America’s public schools are the nurseries of democracy.”

Cohen & Duncan Attorneys LLC believes this landmark ruling should, and will, provide clear guidance to school officials who are paying attention. However, if your child has suffered sanctions as a result of protected free speech made off-campus, please contact Clifford Cohen or Andrew Duncan: cac@studentrightslawyers.com or ad@studentrightslawyers.com 


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