Give Me a $#@%—SCOTUS Bolsters First Amendment in Cheerleader Case

CATEGORY: Authored Articles
CLIENT TYPE: Private Education, Public Education
AUTHOR: David Urban
PUBLICATION: Bloomberg Law
DATE: Jul 09, 2021

LCW Special Counsel David Urban penned the article “Give Me a $#@%—SCOTUS Bolsters First Amendment in Cheerleader Case,” which was published in the July 9 issue of Bloomberg Law. The piece explores the U.S. Supreme Court’s recent decision regarding a public school that punished a cheerleader for a vulgar social media post and what the decision means for public educators. Please see the article below.

The U.S. Supreme Court’s decision in a case involving a school disciplining a 14-year-old cheerleader for a profane Snapchat post will change how schools can discipline students in the context of social media and off-campus speech, writes David Urban, senior counsel at Liebert Cassidy Whitmore. He discusses its impact on public educators.

Students can face discipline for more than just obvious on-campus misconduct; they can also be disciplined for their speech. Often educators face situations in which they must decide whether to discipline students for harsh name calling and bullying, defamation, or threats. Educators must sometimes also consider the appropriate response to inflammatory speech that may occur on or off campus.

When considering whether to discipline students for speech, public school districts have to take First Amendment considerations into account. This is because public educational institutions are government entities and thus bound by constitutional standards in interacting with the public, including their own students.

On June 21 the U.S. Supreme Court provided substantial guidance to educators on how these standards apply, and in particular how they apply to student speech on social media and off-campus. In Mahanoy Area School District v. B.L., the court held that a high school violated a cheerleader’s First Amendment rights when it disciplined her for a short, profane Snapchat post she created off-campus on a Saturday.

The Offending Post

In Mahanoy, a Pennsylvania public high school student, frustrated at her lack of ability to advance in cheerleading, posted to Snapchat a picture of herself with the caption (spelling out the offending words): “F ____ school f_____ softball f_____ cheer f______ everything.” The image could be seen by about 250 people, including fellow students and cheerleaders. The coaches learned of the post and decided it violated team and school rules. They suspended B.L. for a year from the cheerleading team.

The Supreme Court began its discussion of standards by re-stating the general rule from its prior precedent on when a school can, consistent with the First Amendment, discipline a student for on-campus speech. It can do so for speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”

The court then indicated that the ability to discipline under this standard for off-campus speech can apply in certain circumstances. The court cited “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

More Protection for Off-Campus Speech

The court suggested that in general, off-campus speech should be more likely to enjoy First Amendment protection than on-campus speech. It then described three typical features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” to allow discipline.

First, in relation to off-campus speech, schools will rarely stand “in loco parentis,” i.e., “standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them.” The court thereby suggested discipline is more appropriate in circumstances in which the school stands “in loco parentis.”

Second, regulating off-campus speech would mean responsibility to monitor students 24-hours a day, thus encroaching on students’ ability to express themselves. On this point, the court provided guidance for future cases: “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”

Third, the court stated that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” The court explained:

America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.’ This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.

The court proceeded to apply these standards to the student B.L.’s case, ultimately concluding that the First Amendment protected her speech.

It is worth noting that, in California, the Mahanoy decision has application to private high schools. California’s “Leonard Law,” passed in 1992, affords statutory free speech rights to high school students in private schools (and to a limited extent in private religious schools). Case law interpreting how the First Amendment applies to public schools is important in deciding what statutory free speech rights high school students in California private schools can assert.

In addition, although the Supreme Court in Mahanoy clearly focused on the speech of K-12 students, the case will also have relevance to considering protection for student speech in public colleges and universities, which are also bound by the First Amendment.

This is particularly true of the Supreme Court’s discussion of how off-campus speech can under certain circumstances diminish an institution’s ability to act. In California, even private colleges and universities will have to pay heed to Mahanoy’s holding, because the state’s Leonard Law described above confers statutory free speech rights on students at those institutions.

Only about once per decade does the U.S. Supreme Court decide a case addressing student First Amendment rights. This year’s decision in Mahanoy case provides substantial guidance in this area of the law.

Author Information

David Urban is senior counsel with Liebert Cassidy Whitmore representing organizations, public and private educators and public agencies in all aspects of labor and employment law, including in cases of alleged discrimination and retaliation, disability accommodation, privacy, trade secrets, First Amendment, and violation of wage and hour laws.


This article is shared courtesy of Bloomberg Law.

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