On June 30, 2020, the Third Circuit Court of Appeals issued its opinion in B.L. v Mahanoy Area Sch Dist, a case originating in Pennsylvania.  There, a disgruntled cheerleader, who had tried out for the varsity squad but was kept on the junior varsity squad, posted a “snap” on Snapchat containing the caption “fuck cheer.”  The snap was widely disseminated amongst her peers and teammates, who complained to the cheerleading coaches.  B.L was then suspended from the team; thereafter, she sued the school district, claiming that her First Amendment right to free speech had been violated.

For the court, the crucial question was this: may a school punish a student for off‑campus speech?  To answer that question, the court analyzed two landmark cases: Bethel Sch Dist No. 403 v Fraser, 478 US 675 (1986) and Tinker v Des Moines Indep Comm Sch District, 393 US 503 (1969).  Fraser involved a student speech at a school assembly in support of another student’s candidacy for vice president of the student body; the speech was lewd, and the student giving the speech was punished.  Generally, Fraser stands for the proposition that a school may punish a student’s lewd speech.  In Tinker, students were punished for wearing black armbands to school, symbolizing opposition to the Vietnam War.  Tinker stands for the proposition that a school may not punish student speech unless it substantially disrupts the school environment.

The court quickly dispensed with Fraser, noting that while lewd speech may be subject to discipline on‑campus, schools are not similarly empowered to regulate lewd off‑campus speech.  The meat of the court’s analysis was devoted to Tinker, with the ultimate finding, “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.”  In other words, even if a student’s off‑campus speech causes a substantial disruption to school, that student is not subject to discipline for the speech.

Without taking away the gravity of the court’s decision, a couple caveats merit mentioning.  First, the court did not address off‑campus speech that involves harassment or threats of violence.  Presumably, that speech could be subject to discipline.  Second, the court is the first to completely separate Tinker from off‑campus speech, and the Third Circuit does not set binding precedent for Michigan’s federal courts – which are in the Sixth Circuit.  It is possible that the Sixth Circuit would reach a different conclusion than the Third Circuit, potentially setting up a showdown before the United States Supreme Court.

For now, Mahanoy Area Sch Dist is an interesting data point that Michigan school administrators should consider before subjecting students to discipline for off‑campus speech.  As always, administrators should contact legal counsel regarding complex First Amendment questions and advice.

The decision may be accessed here.