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A Turning Point for Student Speech?

Corey Friedman on

Students are largely free to speak their minds off campus without fear of school punishment, even if social media's boundless reach blurs the line between living room and classroom.

With a few caveats, that's the gist of a highly anticipated Supreme Court ruling handed down Wednesday in Mahanoy Area School District v. B.L., a case that tested the limits of public school discipline.

An 8-1 majority held that Mahanoy Area High School in Pennsylvania violated Brandi Levy's First Amendment rights when it kicked her off the junior varsity cheerleading team for raising her middle finger and dropping the f-bomb in a weekend Snapchat story shared with a friend group that included some teammates.

Justices dodged the question of whether Tinker v. Des Moines, the 1969 case that serves as a lodestar for on-campus student speech rights while allowing schools to maintain order, applies to minors in their private lives. The 3rd U.S. Circuit Court of Appeals, which also ruled in Levy's favor, found Tinker's tolerance for discipline too stifling for teenagers in society at large and sought to tether it to physical school buildings.

"Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus," Justice Stephen Breyer wrote in the majority opinion. "The school's regulatory interests remain significant in some off-campus circumstances."

The court cites examples including threats aimed at teachers or students, severe bullying and harassment, homework and participation in online school activities. Breyer noted that the list isn't exhaustive, and justices chose not to establish a bright-line test for when schools can step in.

 

They did, however, express general skepticism toward such intervention when students are under their parents' care.

"Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility," Breyer wrote.

The majority held that administrators must meet "a heavy burden" before trying to rein in students' political or religious speech outside the school environment and noted that public schools, as "nurseries of democracy," have an interest in protecting unpopular expression rather than punishing it.

A nearly unanimous court narrowed school officials' path to policing speech in students' homes, but left the door open a crack rather than slamming it shut.

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