A Capehart Scatchard Blog

First Amendment: U.S. Supreme Court Narrows the Right of Schools to Discipline Off Campus Speech

By on July 6, 2021 in Students with 0 Comments

By: Gitika Kapoor, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

The Supreme Court of United States ruled on June 23, 2021 that a Pennsylvania public school district violated a student’s First Amendment rights by punishing her for posting a vulgar message on social media while off-campus and off school hours. In reaching this decision in Mahanoy Area School District v. Levy, the Court considered that the speech was made off campus and did not involve school infrastructure. Moreover, it did not cause substantial disruption because while it upset a few students and was a topic of discussion for a few days, it did not disrupt class or school activities.

The case concerned a high school student who resorted to vulgar language to express her dismay over not making the varsity cheerleading team. The speech at the heart of this matter was her post on the social media application Snapchat which showed her and a friend with middle fingers raised; bearing the caption: “F— school f— softball f— cheer f— everything.” The image was brought to the knowledge of cheerleading coaches by “visibly upset” students. The school authorities decided that the posts used profanity in connection with school extracurricular activity and suspended the student from the team for a year. The District Court found in favor of the student, which the Third Circuit affirmed in a broad ruling that the special characteristics which allow schools to regulate speech always disappear when a school regulates off campus speech.

The Supreme Court stepped away from the broad ruling by the Third Circuit, but affirmed that the student’s speech was protected under the First Amendment. The Court held that a “school’s regulatory interests remain significant in some off campus circumstances.” These include bullying, threats, failure to follow rules, writing of papers, use of computers, and participation in other online activities; and breach of school security devices. In deciding that the school could have not regulated the speech, the Court considered when, where and how she spoke. Because the speech was done using her personal cell phone, outside school, outside of school hours, and did not identify or target any member of the school community, the school’s interest in punishing her was diminished. The underlying rationale of the Court’s decision was that certain features of off campus speech make it wary of allowing schools to supervise off campus speech. First, parents are better suited to discipline students in off school settings. Second, if off campus speech is regulated, it could amount to round the clock surveillance of everything students say. Last, unpopular speech is worthy of protection.

While the Court did not foreclose the ability for public school districts to discipline students for off campus speech, it stated that the circumstances under this case did not give the school district the right to discipline the student’s speech. Unfortunately, the Court did not provide a bright line rule or set of factors regarding when public school district could discipline for off campus speech.

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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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