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Mahanoy Area School District v. B.L.
Supreme Court of the United States
Argued April 28, 2021 Decided June 23, 2021
Full case name	Mahanoy Area School District v. B.L., A Minor, By And Through Her Father Lawrence Levy And Her Mother Betty Lou Levy
Docket no.	20-255
Citations	594 U.S. ___ (more)
Argument	Oral argument
Case history
Prior	Preliminary injunction granted to plaintiff, B.L. v. Mahanoy Area School District, 289 F. Supp. 3d 607 (M.D. Pa., 2017) Summary judgment granted in favor of plaintiff, B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (M.D. Pa. 2019) Affirmed, 964 F.3d 170 (3d Cir. 2020) Cert. granted, No. 20-255, 2021 WL 77251 (U.S. Jan. 8, 2021)
Questions presented
Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.
Holding
While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case. Third Circuit affirmed.
Court membership
Chief Justice John Roberts Associate Justices Clarence Thomas · Stephen Breyer Samuel Alito · Sonia Sotomayor Elena Kagan · Neil Gorsuch Brett Kavanaugh · Amy Coney Barrett
Case opinions
Majority	Breyer, joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett
Concurrence	Alito, joined by Gorsuch
Dissent	Thomas
Laws applied
U.S. Const. amend. I

Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), was a United States Supreme Court case involving the ability of schools to regulate student speech made off-campus, such as speech made on social media. The case challenged past interpretation of Tinker v. Des Moines Independent Community School District and Bethel School District v. Fraser, previous Supreme Court decisions related to student speech which may be disruptive to the educational environment, in light of online communications.

The case centered on Brandi Levy, identified as B.L. in pleadings, a student at Mahanoy Area High School in Mahanoy City, Pennsylvania, who posted an angry, profane Snapchat message from an off-campus location after she failed to make the school's varsity cheerleading squad. Though sent to a private circle of friends and deleted later, the message was shown to school staff, and B.L. was suspended from cheerleading the next year under the school's policy relating to social media.

B.L.'s parents filed suit on her behalf in the Middle District of Pennsylvania, arguing that the school district had unconstitutionally punished her for speech made completely outside of the school that did not pose a risk of disruption. The District Court held in B.L.'s favor and that the school's policy was beyond its disciplinary reach under Tinker. On appeal to the Third Circuit, a three-judge panel unanimously affirmed this ruling, but the majority opinion stated that Tinker did not extend to any off-campus speech, while a dissenting opinion believed this conclusion was overly broad. The Third Circuit's decision created a circuit split for the Supreme Court to resolve.

The Supreme Court affirmed the Third Circuit's ruling in regards to B.L.'s case in a 8–1 decision in June 2021, though overruled the Third Circuit's opinion related to off-campus speech relative to Tinker. The Court affirmed that through Tinker, schools may have a valid interest to regulate student speech off-campus that is disruptive, but did not define when this regulation can occur, leaving this open for lower courts in future litigation. The Court ruled specifically for B.L. that the school's interests to prevent disruption under Tinker were not sufficient to overcome her First Amendment rights.

Underlying dispute

B.L. was a ninth-grade student and junior varsity (JV) cheerleader at Mahanoy Area High School, a public secondary school operated by the Mahanoy Area School District, covering the area in and around Mahanoy City in Schuylkill County, Pennsylvania. In addition to cheering at football, basketball and wrestling matches, her obligations as a cheerleader included raising additional funding for the squad from the community. As a condition of being a cheerleader, she was required to sign a code of conduct that required squad members show respect for their teammates, coaches, the school, teachers, other schools' cheerleaders; the rule forbade the use of profanity. Another rule forbade cheerleaders from posting "negative information" about "cheerleading, cheerleaders or coaches" on the Internet. The code had been written by previous cheerleading coaches and approved by the school board.

Near the end of the 2016–17 academic year, B.L. tried out for the next year's cheerleading squad. She hoped to make the varsity, but the two coaches, both teachers in the district, again found her only good enough for the JV squad. An eighth-grader at the tryouts, meanwhile, made the varsity.

The following weekend, B.L. and a friend commiserated about the apparent unfairness of this at the Cocoa Hut, a convenience store in downtown Mahanoy City where students often socialized. Using B.L.'s smartphone, the two took a selfie with middle fingers raised and posted it to her Snapchat story with the text "fuck school fuck softball fuck cheer fuck everything". A followup Snap expressed their frustration about being kept on the JV squad while the incoming freshman girl made varsity; they believed they were being treated unfairly. B.L. sent the two Snaps to a group of 250 friends, many of whom were fellow students, some of them cheerleaders themselves.

The Snap itself self-deleted in a short period of time, but one of her teammates took a screenshot. One of those teammates was the daughter of one of the coaches, who had herself been suspended from cheering at a few games after she had posted disparaging remarks online about another school's cheerleading squad's uniforms. By the time school resumed for the following week, the screenshot had been widely shared among students, especially the cheerleaders. Some who had seen it came to the cheerleading coaches "visibly upset" by the Snap over the next few days. At the end of the week one of the coaches pulled B.L. out of class to inform her that she was suspended from cheerleading for the next year as a result of her Snap. B.L.'s parents appealed the suspension to the school board, which upheld it.

Prior decisions on student speech

Third Circuit

In J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (2011), and Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205 (2010), students were suspended for creating websites that lampooned school officials using vulgar language. In decisions handed down the same day, the United States Court of Appeals for the Third Circuit held that (1) student speech uttered off-campus is not rendered "on-campus speech" simply because it eventually reaches inside the school; (2) The Supreme Court decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 is inapplicable to off-campus speech; and (3) Tinker might apply to off-campus speech.

Supreme Court

In 1943's West Virginia State Board of Education v. Barnette, the U.S. Supreme Court first considered the First Amendment rights of students in public schools. Six justices held that students could not be required to say the Pledge of Allegiance or salute the flag, which they had refused to do as Jehovah's Witnesses. A quarter-century later it first considered what rights students had to express themselves in school. In Tinker v. Des Moines Independent Community School District the first of four cases it has heard on the subject, it held that they did, but has limited that right in two of the three cases since then. In the third it limited student freedom of the press.

Five students who wore black armbands to school in 1965 as a protest against the Vietnam War were suspended after defying an administrative edict forbidding doing so; they challenged their punishment in federal court. "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate", Justice Abe Fortas wrote for the majority in Tinker, now considered the seminal case in school speech jurisprudence.

The Tinker Court had taken note of the silent, passive nature of the armband protest, observing that possible disruption to the schools' operations feared by administrators had not actually occurred. That was not the case in Bethel School District v. Fraser, a 1986 case in which the court sided with the administration in upholding its disciplinary actions against a student who gave a speech at an assembly in support of a candidate for student office laced with double entendres and sexual innuendo. "The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission", Chief Justice Warren Burger wrote for a 7–2 majority. "A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students."

Two years later, in Hazelwood School District v. Kuhlmeier, the Court upheld administrators' decision to remove articles whose subject matter they had considered inappropriate for a student audience from a newspaper produced by journalism students. "tudents, parents, and members of the public might reasonably perceive to bear the imprimatur of the school" since they had been produced as part of a class, wrote Justice Byron White for a 6–3 majority. "A school must be able to set high standards for the student speech that is disseminated under its auspices".

The respondent student in 2007's Morse v. Frederick took the "schoolhouse gate" language from Tinker literally, arguing that the school had unconstitutionally disciplined him for displaying a banner with "BONG HiTS 4 JESUS" written on it from the sidewalk across from the high school he attended. The Court rejected that argument, noting that he had been at a school-sponsored event where students gathered on either side of the street, with teachers and other staff supervising and the band and cheerleaders performing as the Olympic torch relay passed the school. The majority agreed with the school that this mattered more than him not being on school property at the time, holding the student's suspension was permissible under Tinker.

As part of proceedings, the court heard a brief from several free speech and student journalism groups, including the Student Press Law Center and Associated Collegiate Press, who argued that the court has unconstitutionally established students as second-class citizens as a consequence of school enrollment.

Lower courts

B.L., represented through her parents and supported by the American Civil Liberties Union, sued the school in federal court for the Middle District of Pennsylvania; her attorney emphasized that her remarks were those of frustration made on her own social media account on her own time and contained neither threats nor any mention of the name of her school. In October 2017, four months after B.L. was suspended from cheerleading, Judge A. Richard Caputo granted her a preliminary injunction forbidding the school from enforcing the suspension. He held that B.L. was likely to succeed on the merits of her case and would suffer irreparable harm without the injunction. "Simply put, the ability of a school to punish lewd or profane speech disappears once a student exits school grounds."

In March 2019, Caputo granted summary judgement for B.L., as the school could not curb B.L.'s off-campus speech per Fraser and that the speech did not disrupt the school's operation under Tinker. He rejected the district's arguments that B.L. had waived her constitutional rights by joining the cheerleading squad based on previous case law, that it could not be liable for the coaches' actions since it had approved the code B.L. had signed, and that she had no constitutional right to be a cheerleader since it was irrelevant whether she did or not. "The District's concession that B.L.'s speech occurred off-campus is all but fatal", he said, finding that Tinker and Fraser's exceptions did not apply as her speech was neither disruptive nor on-campus respectively; he found it more similar to the mock MySpace profile at issue in J.S. ex. rel. Snyder. Caputo allowed that there were some other cases which allowed schools to impose greater speech limits on student-athletes, but those did not come into play since B.L. was not engaging in school-sponsored speech.

Third Circuit

The school district appealed to the Third Circuit. A three-judge panel acknowledged that "B.L.'s snap was crude, rude, and juvenile, just as we might expect of an adolescent", but upheld the District Court's holding in her favor, again finding that both Tinker and Fraser did not support restricting her off-campus speech. Writing for the panel, Judge Cheryl Ann Krause, agreed with Caputo that the speech had clearly been off-campus, thus punishing B.L. for it violated her First Amendment rights.

Krause and the panel went further and reviewed the other circuits' approaches to the on-/off-campus distinction. While she agreed this was a difficult question to resolve, and commended their efforts, "we find their approaches unsatisfying in three respects."

The Second Circuit had erred in applying the reasoning from Wisniewski, where a student's threatening action posed an undeniable foreseeability of disruption, to Doninger: 'What began as a narrow accommodation of unusually strong interests on the school's side ... became a broad rule governing all off-campus expression." The other circuits, Krause wrote, "have adopted tests that sweep far too much speech into the realm of schools' authority", especially given the reach of modern communications technology. "Implicit in the reasonable foreseeability test, therefore, is the assumption that the internet and social media have expanded Tinker's schoolhouse gate to encompass the public square." The nexus test the Fourth Circuit had used in Kowalski collapsed the analysis in a way she called "tautological ... Schools can regulate off-campus speech under Tinker when the speech would satisfy Tinker."

Lastly, Krause found that whether they had crafted tests or not, the other circuits' approaches lacked "clarity and predictability." The Second and Eighth Circuits' foreseeability test, used in Wisniewski and S.J.W., "ha made it difficult for students speaking off campus to predict when they enjoy full or limited free speech rights. After all, a student can control how and where she speaks but exercises little to no control over how her speech may 'come to the attention of the school authorities'". It was likewise difficult for students using the Fourth Circuit's nexus test, articulated in Kowalski, to ascertain when their speech off-campus might implicate the school's "pedagogical mission".

Instead, Krause built on the approach Smith had taken in J.S. ex. rel. Snyder and held that Tinker did not apply to off-campus speech, which she defined as "speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur." This holding would be clear and easy to understand, she wrote. As for threatening or harassing speech, which was not at issue in the instant case, it "would no doubt raise different concerns and require consideration of other lines of First Amendment law."

Judge Thomas L. Ambro concurred in the judgement, agreeing that B.L.'s free-speech rights had been violated but dissented from the majority's holding that this was because Tinker forbade any regulation of off-campus speech, a question B.L. had said the court need not decide. Instead, Judge Ambro believed that the same judgment could have been obtained on a more narrow grounds.

Supreme Court

The school district petitioned to the Supreme Court to take the case, arguing that particularly with the COVID-19 pandemic, the nature of online communications required reevaluation of the distinction between on versus off-campus speech in the context of distance learning. The Supreme Court granted certiorari to resolve the circuit split (as the Fifth Circuit's decision in Bell had held that Tinker does govern off-campus student speech) in January 2021.

Amicus curiae supporting respondent B.L. included free speech advocacy groups and religious groups such as the Alliance Defending Freedom that express concern that a ruling favoring the school could lead to prosecution of a student's religious beliefs. Those supporting the school included anti-cyberbullying advocacy groups like the Cyberbullying Research Center, who believe a ruling favoring the student would limit schools' ability to regulate and take action against cyberbullying. The federal government under acting solicitor general Elizabeth Prelogar urged the Court to find an intermediate position, by recognizing that while the Court had previously ruled that off-campus speech cannot be regulated, there are some types of student speech over which schools should have oversight when that speech threatens the school or targets individual members of the school.

Oral arguments

Oral arguments were heard on April 28, 2021. Reporters for the Associated Press and Reuters that observed the oral arguments stated that it was unclear if the Court would accept the bright-line ruling of the Third Circuit as they argued there were compelling reasons for the school to have authority over some types of off-campus speech made on social media. At the same time, the reporters stated that the Justices were also wary of giving schools too much oversight of off-campus speech and the extent of off-campus speech's reach into the schools due to social media use. Justices had considered if the specific case was an appropriate vehicle to define new bounds for protections related to student speech, arguing under Tinker that B.L.'s Snapchat post may simply not have been sufficiently disruptive to warrant action by the school. Vox's Ian Millhiser stated that the Justices argued for a more narrow ruling than the case had appeared to originally merit and would not likely be a landmark decision.

The New York Times reported that the justices seemed sympathetic with Levy. Stephen Breyer doubted that her Snap had been significantly disruptive to the school's operations, and that if it was, "my goodness, every school in the country would be doing nothing but punishing." Brett Kavanaugh, a youth basketball coach himself, said the yearlong suspension seemed excessive. But he appeared to reporter Adam Liptak to be expressing the views of several other justices when he said the Court's opinion should not be a "treatise" and that "the First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off campus, period."

Decision

The Supreme Court issued its decision on June 23, 2021, which affirmed the Third Circuit's ruling in a 8–1 judgement. The majority opinion was written by Justice Stephen Breyer and joined by all other Justices excluding Justice Clarence Thomas. Breyer's majority opinion overruled some of the Third Circuit's majority opinion in relationship to Tinker in that it was too broad towards off-campus speech, and that schools may have a legitimate interest to restrict off-campus speech, such as in relation to harassment and bullying. However, the majority did not try to define the bounds when this applies: "We do not now set forth a broad, highly general First Amendment rule stating just what counts as 'off campus' speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent … substantial disruption of learning-related activities or the protection of those who make up a school community." Breyer identified three factors related to off-campus speech that should be considered in future litigation: that off-campus speech is usually the responsibility of the student's parents, that off-campus speech covers virtually any activity outside of the school facility, and that the school has a responsibility to protect unpopular ideas by students. Of the latter point, Breyer said "The school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus," because "America's public schools are the nurseries of democracy."

Turning specifically to B.L.'s case, Breyer wrote that while the school may have a valid interest to control student speech off campus, the school district violated B.L's First Amendment rights in reprimanding her for her post. Breyer stated that if B.L. had been an adult, her Snapchat post would have been protected by the First Amendment, and that there was no evidence that her post created the type of disruption that Tinker addressed. Other aspects of B.L.'s case worked towards her favor in protecting her First Amendment rights over the school's interests, including that her Snapchat message was sent to a private circle of friends, and that it did not explicitly name the school nor targeted any individuals. Breyer wrote "It might be tempting to dismiss (the student's) words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

Justice Samuel Alito wrote a concurring opinion that was joined by Justice Neil Gorsuch. In joining the majority, Alito identified that "there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment's protection." He considered that a school that punished a student speaking out against it would be a form of a "heckler's veto".

Justice Thomas, the lone dissenter, reiterated the argument from his Morse concurrence that the Tinker Court had never sufficiently explained how the First Amendment would have been understood as applying to student speech at the time the Fourteenth Amendment was ratified, and cited prior state cases from that period suggesting it was not; Thomas stated "a more searching review reveals that schools historically could discipline students in circumstances like those presented here". Thomas wrote "the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media". He also wrote that the school should have been able to restrict B.L.'s speech as students "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs".

See also

• Cohen v. California (1971), another free-speech case involving the use of the word fuck
• List of United States Supreme Court cases involving the First Amendment

Notes

1. At the time that the lawsuit was filed, Levy was a minor; legal files listed her as B.L. to protect her identity, with her parents as co-plaintiffs.

References

1. "SMERCONISH". CNN. January 2, 2021. Retrieved March 2, 2021.{{cite web}}: CS1 maint: url-status (link)
2. ^ B.L. v. Mahanoy Area Sch. Dist., 289 F. Supp. 3d 607 (M.D. Pa. 2017) ("Mahanoy I").
3. ^ Mahanoy I, 289 F. Supp. 3d at 610.
4. ^ Mahanoy II, 376 F. Supp. 3d at 432–33.
5. Mahanoy II, 376 F. Supp. 3d at 438.
6. ^ Walsh, Mark (July 1, 2020). "Federal Appeals Court Rejects Student Discipline for Vulgar Off-Campus Message". EducationWeek.
7. ^ Liptak, Adam (December 28, 2020). "A Cheerleader's Vulgar Message Prompts a First Amendment Showdown". The New York Times. Archived from the original on January 3, 2020. Retrieved January 4, 2021. {{cite web}}: |archive-date= / |archive-url= timestamp mismatch; January 3, 2021 suggested (help)
8. Weiss, Debra Cassens (January 11, 2021). "Supreme Court agrees to hear First Amendment case of suspended cheerleader". ABA Journal.
9. Mahanoy II, 376 F. Supp. 3d at 444.
10. Mahanoy III, 964 F.3d at 175–76.
11. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
12. ^ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
13. ^ Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986).
14. Morse v. Frederick, 551 U.S. 393 (2007).
15. ^ Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).
16. Tinker, 393 U.S. at 506.
17. Katherine A. Ferry, Reviewing the Impact of the Supreme Court's Interpretation of 'Social Media' as Applied to Off-Campus Student Speech, 49 Loy. U. Chi. L.J. 717, 723 (2019)..
18. Julie Barnard, Shen v. Albany Unified School District: An Articulation of the Boundaries of Student Speech in the Social Media Era, 21 Tul. J. Tech. & Intell. Prop. 131, 132 (2019)..
19. Morse, 551 U.S. at 397–98.
20. "On Writ of Certiorari to the United States Court of Appeals for the Third Circuit in MAHANOY AREA SCHOOL DISTRICT versus B.L." (PDF). Amicus curiae et. al. March 31, 202.{{cite web}}: CS1 maint: others (link) CS1 maint: url-status (link)
21. Mahanoy I, 289 F. Supp. 3d at 613.
22. B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (M.D. Pa. 2019) ("Mahanoy II").
23. Mahanoy II, 376 F. Supp. 3d at 437–43.
24. B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020) ("Mahanoy III").
25. ^ Mahanoy III, 964 F.3d at 187–88.
26. Mahanoy III, 964 F.3d at 190–91.
27. Mahanoy III, 964 F.3d at 194–96.
28. ^ Liptak, Adam (June 23, 2021). "Supreme Court Rules for Cheerleader Punished for Vulgar Snapchat Message". The New York Times. Retrieved June 23, 2021.
29. Robinson, Kimberly Strawbridge (January 8, 2021). "U.S. Supreme Court Takes Up Cheerleader Free Speech Dispute". Bloomberg News. Retrieved January 8, 2021.
30. Millhiser, Ian (April 22, 2021). "The Supreme Court's "cursing cheerleader" case could reshape students' First Amendment rights". Vox. Retrieved April 22, 2021.
31. Howe, Amy (April 27, 2021). "Student's Snapchat sets up major ruling on school speech". SCOTUSblog. Retrieved April 27, 2021.
32. Sherman, Mark (April 28, 2021). "Wary Supreme Court weighs student's Snapchat profanity case". Associated Press. Retrieved April 28, 2021.
33. Chung, Andrew (April 28, 2021). "U.S. Supreme Court grapples with cheerleader's free speech case". Reuters. Retrieved April 28, 2021.
34. Millhiser, Ian (April 28, 2021). "The free speech case so complicated it seems to have stumped the Supreme Court". Vox. Retrieved April 29, 2021.
35. Liptak, Adam (April 28, 2021). "A Lively Supreme Court Argument Over a Cheerleader's Vulgar Rant". The New York Times. Retrieved April 30, 2021.
36. ^ Robertson, Adi (June 23, 2021). "Supreme Court says a school can't punish a cheerleader for swearing on Snapchat". The Verge. Retrieved June 23, 2021.
37. Hardawar, D. (June 23, 2021). "Supreme Court rules that 'F--- school' is free speech in student Snapchat case". Engadget. Retrieved June 23, 2021.
38. Roebuck, Jeremy (June 23, 2021). "U.S. Supreme Court sides with a cussing Pa. cheerleader in student free-speech case". The Philadelphia Inquirer. Retrieved June 23, 2021.
39. ^ Howe, Amy (June 23, 2021). "Court rules for high school cheerleader in First Amendment dispute over Snapchat profanity". SCOTUSblog. Retrieved June 23, 2021.
40. ^ Breuninger, Kevin; Mangan, Dan (June 23, 2021). "Supreme Court rules for Pennsylvania cheerleader in school free speech case". CNBC. Retrieved June 23, 2021.
41. ^ de Vogue, Ariane (June 23, 2021). "Supreme Court sides with high school cheerleader who cursed online". CNN. Retrieved June 23, 2021.
42. ^ Root, Damon (June 23, 2021). "High School Cheerleader's Profane Social Media Rant Is Protected Free Speech, Says SCOTUS". Reason. Retrieved June 24, 2021.

External links

• SCOTUSblog coverage
• Slip opinion

• History of Schuylkill County, Pennsylvania
• United States Supreme Court cases
• United States Supreme Court cases of the Roberts Court
• United States Court of Appeals for the Third Circuit cases
• Student rights case law in the United States
• 2020 in United States case law
• United States Internet case law
• Snap Inc.
• United States Free Speech Clause case law
• Education in Schuylkill County, Pennsylvania
• Cheerleading