On June 30, 2020, the United States Court of Appeals for the Third Circuit issued its opinion in the case of B.L. v. Mahanoy Area School District.  In this case, the Third Circuit affirmed a decision of the United States District Court for the Middle District of Pennsylvania holding that a school district’s attempt to suspend a student from the cheerleading squad for what the school district deemed to be an offensive social media posting constituted an impermissible violation of the student’s First Amendment rights.

The facts of the case were fairly straightforward.  A high school sophomore failed to make her high school’s varsity cheerleading team and was told she would be placed on the junior varsity squad.  Subsequently, while the student was with a friend at a local store on a Saturday, the student took a photo of herself and her friend with their middle fingers raised and, using the social media app Snapchat, captioned the photo with several expletives related to her displeasure with the decision to place her on the junior varsity cheerleading team.  The photo was disseminated to approximately 250 of the student’s followers via the Snapchat app.  Some of these followers took screenshots of the photo and showed them to the cheerleading squad coaches.  The two coaches, citing certain team rules and school policies requiring student-athletes to have respect for their school and conduct themselves in such a way that the school district’s image remained untarnished, removed the student from the junior varsity cheerleading squad.  The student and her parents appealed the coaches’ decision through various levels of the school bureaucracy and although the school authorities ruled that the student could try out for the team again the following year, they upheld the coaches’ decision to remove the student for the team for that year.  B.L. subsequently sued the school district alleging a violation of her First Amendment rights.

In affirming the decision of the District Court in favor of the student, the Third Circuit conducted an analysis of existing student speech cases and determined that a student’s First Amendment rights are subject to narrow limitations when speaking in the school context, but are coextensive with those of an adult outside that context.  The Circuit Court held that, despite the best arguments of the school district, the student’s social media posting constituted off-campus speech.  Although acknowledging that the line between on-campus and off-campus speech is continually blurred, the Court held that the student’s online speech could not be rendered “on-campus” simply because it involved the school, mentioned teachers or administrators, or simply reached the school environment.  The Circuit Court concluded that the facts of the case, i.e. that the posting was made away from the school, on a weekend, without school resources, and shared on a social media platform unaffiliated with the school, showed that the speech was made “off-campus”.  Further, in addressing the School District’s contention that the student could be punished under the “substantial disruption” standard articulated by the United States Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, the Third Circuit decided to address the question of whether or not Tinker applies to off-campus speech.

Ultimately, the Third Circuit held that Tinker does not apply to off-campus speech, which the Court defined as “speech that is outside school owned, operated, or supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”  The Court was careful to note that nothing in the B.L. case questioned school officials’ authority to regulate speech within the school environment.  The Court further noted that the present case did not involve off-campus speech which threatened violence or targeted harassment, and those types of cases would be decided under different doctrines and exceptions to the First Amendment.  The Court did note that its ruling did leave some vulgar, crude, or offensive speech beyond the power of schools to regulate, but ultimately felt that this was outweighed by First Amendment considerations.

The Third Circuit’s decision, while limiting the rights of school districts to punish certain forms of student speech, provides clarity to school districts in determining when they can and cannot regulate such speech.  It is certainly foreseeable that many of the recent protests and instances of civil demonstration will continue to occur in the upcoming months and that students may share certain views, especially on social media, that certain school officials may consider disruptive to the school community.  The B.L. decision will, at a minimum, provide some clarity to school districts in determining what type of speech it can regulate.

Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.