21 Jul Third Circuit Adopts New Standard, Holding that Tinker Does Not Proscribe “Off-Campus” Student Speech
Education: Third Circuit Adopts New Standard, Holding that Tinker Does Not Proscribe “Off-Campus” Student Speech
B.L. v. Mahanoy Area School District, No. 19-1842 (3d Cir. June 30, 2020).
In a decision likely to create greater uncertainty about regulation of student posts to non-school social media, the Third Circuit adopts a rule that off-campus communication is not subject to Tinker’s prohibition against creating disruption within schools and holds that a student’s profane snapchat post cannot result in discipline against her.
B.L., a junior varsity cheerleader at Pennsylvania’s Mahanoy Area High School (MAHS), was disappointed that she had not been selected to advance to varsity cheerleading. One Saturday she took photo of herself and a friend in a local store, middle fingers raised, and posted it to Snapchat. The caption read: “F**k school f**k softball f**k cheer f**k everything.” and “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else? ”
B.L’s coaches decided the snap violated school rules, which B.L. had acknowledged before joining the team: cheerleaders pledged to “have respect for [their] school, coaches, . . . [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” B.L. was suspended from the JV team, with the option to try out again the following year.
B.L. sued the Mahanoy Area School District (District) advancing three claims under 42 U.S.C. § 1983: that her suspension violated the First Amendment; that the rules she was said to have broken were overbroad and viewpoint discriminatory; and were unconstitutionally vague.
The District Court granted summary judgment in B.L.’s favor, finding that (1) B.L. had not waived her speech rights by agreeing to the team’s rules and that her suspension implicated the First Amendment even though extracurricular participation is merely a privilege; (2) B.L.’s snap was off-campus speech not subject to regulation under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986); and (3) the snap had not caused any actual or foreseeable substantial disruption of the school environment, excluding her from discipline under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It entered judgment in B.L.’s favor, awarding nominal damages and requiring MAHS to expunge her disciplinary record.
The Third Circuit affirmed. As it phrased it, “[T]his appeal requires that we answer just two questions. The first is whether B.L.’s snap was protected speech. If it was not, our inquiry is at an end. But if it was, we must then decide whether B.L. validly waived that protection.
Protection of Student Speech: Tinker made it clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate;” those speech freedoms extend to all aspects of “the process of attending school,” whether “in the cafeteria, or on the playing field, or on the campus during authorized hours.” The only exception allowed for regulation of speech that “would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”
Nearly two decades later, Tinker was amplified in Bethel, which held that to “inculcate the habits and manners of civility,” schools may “prohibit the use of vulgar and offensive terms.” Later, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allowed regulation of student speech in the context of “school-sponsored . . . expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” And Morse v. Frederick, 551 U.S. 393 (2007), held that schools could “restrict student expression that they reasonably regard as promoting illegal drug use.”
Off-campus versus on-campus: Important in Circuit’s analysis was whether B.L.’s snap was “off-campus” speech. The “on-campus/off-campus” question is not answered merely by analyzing physical situs, because speech originating far beyond school grounds can carry the imprimatur of “school” communication, as in the case of a school listserv. The rapid proliferation of diverse social media technologies has made this important analysis much more complex: “Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.”
The Third Circuit had two useful precedents to reference in resolving the on- versus off-campus question. Each involved a student’s fake MySpace profile ridiculing a school official using crude language. Although those profiles were created away from school, they used photos copied from the schools’ websites, were shared with students, caused gossip at school and were viewed on school computers. Both decisions nevertheless held the profiles to be “off-campus” speech, finding insufficient nexus with the school. These cases informed analysis of B.L.’s snap: it did not bear the imprimatur of MAHS, was created away from campus without school resources, and shared on a social media platform unaffiliated with the school.
Ambiguity about the scope of Tinker. While prior cases had allowed schools to control speech that directly affected school operations and decorum, this scenario raised an issue not decided by Tinker and its progeny:
The School District’s defense of its decision to punish B.L. focuses not on disruption of the school environment at large, but on disruption in the extracurricular context—specifically, the cheerleading program B.L. decried in her snap. And, as the parties’ and amici’s dueling citations reveal, the question of how to measure the potentially disruptive effect of student speech on particular extracurricular activities has bedeviled our sister circuits, and it is not one we have addressed to date. . . .
As one of our district judges put it, “a district court in this Circuit takes up a student off-campus `speech case for review with considerable apprehension and anxiety.”
The Third Circuit canvassed its sister courts’ application of Tinker. The Second and Eighth look for the “reasonable foreseeability” that a communication could cause violence or harassment on campus (for example, a posting depicting a bullet with a message to kill a named teacher). Others, like the Fourth and Ninth, seek a sufficient “nexus” to the school’s “pedagogical interests,” with the observation that student-on-student harassment “can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.”
For the Third Circuit, these approaches did not adequately take into account the proliferation of technologies which elevate every limited social media posting to a “public square” broadcast of ideas, conferring too much authority on the schools: “[W]e conclude that their approaches sweep in too much speech and distort Tinker’s narrow exception into a vast font of regulatory authority. . . . We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
While asserting that its holding provided clarity to students and school administrators alike, the Circuit acknowledged that it was not confronting a case where violence had been threatened (similar to the Second Circuit “bullet and death threat” posting referenced above). “A future case . . . involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of First Amendment law.” The court confirmed while such speech would likely justify greater control and remedial action, “We hold only that off-campus speech not implicating that class of interests lies beyond the school’s regulatory authority.” The Circuit recognized that its ruling “leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate.”
B.L. Did Not Waive Her Free Speech Rights. A final question was whether, by agreeing to certain school and team rules, B.L. waived her First Amendment right to post the offending snap. Although B.L. and amici argued that a requirement to waive First Amendment rights as a condition of joining the team violated the unconstitutional conditions doctrine, the Circuit found no need to evaluate that issue, because a more basic answer was found in the MAHS rules themselves. The “Respect Rule” governing cheerleaders stated:
Please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced[;] this includes foul language and inappropriate gestures.
Obviously, that rule would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. The “Negative Information Rule” was likewise inapplicable. It stated “[t]here will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” Although this rule reached off-campus speech, it only covered “information,” a term denoting matters of fact.
The School District’s last recourse was the “Personal Conduct Rule” in MAHS’s student handbook. It provided:
Participation on an athletic team or cheerleading squad in the Mahanoy Area School District is a privilege and the participants must earn the right to represent Mahanoy Schools by conducting themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner. Any participant whose conduct is judged to reflect a discredit upon himself/ herself, the team, or the Mahanoy Schools, whether or not such activity takes place during or outside school hours during the sports season, will be subject to disciplinary action as determined by the coach, the athletic director and/or the school principal.
This rule applied only “during the sports season;” B.L. had posted her snap between seasons. Also, disciplining students’ behavior that might “tarnish” the school’s “image” in “any manner,” was too obscure and subject to the whims of school officials to give rise to a knowing and voluntary waiver.
Summation: The court’s summation addressed the larger issue at play:
The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. . . . To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so.
CONCURRENCE/DISSENT: Judge Ambro concurred in the result but dissented as a fundamental principle of judicial restraint–that courts should “neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Here, the speech did not even approach Tinker’s basic standards that schools may regulate student speech only if it “substantially disrupt[s] the work and discipline of the school.” The snap did not mention the District, MAHS, or any individuals, did not feature any team uniforms, school logos, or school property and did not cause any “substantial disruptions.”
Here, by being “the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech,” the majority was solving a non-existent problem, with an opinion likely to create more confusion:
The bottom line is that Circuit Courts facing harder and closer calls have stayed their hand and declined to rule categorically that Tinker does not apply to off-campus speech. Yet we do so here in a case bereft of substantial disruptions within the school. I fear that our decision will sow further confusion. For example, how does our holding apply to off-campus racially tinged student speech? Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school? Hard to tell. We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.
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