October 22, 2020 Top Story

Schools Cannot Regulate Student Speech Made Off Campus

Circuit court ruling extends First Amendment protections to off-campus speech

By Leslie R. Snider

At least one circuit court has held that public schools cannot regulate student speech made outside of school-owned or -operated property. The decision in B.L. v. Mahanoy Area School District conflicts with prior application of U.S. Supreme Court precedent on the issue and creates a split with other circuits. However, ABA Section of Litigation leaders categorize the decision as progressive and long overdue, and say that other circuits ought to take notice.

The student was disciplined for posting a photo on her personal social media account with her middle finger raised

The student was disciplined for posting a photo on her personal social media account with her middle finger raised

Credit: Khosrork | iStockphoto by Getty Images

Social Media Post Leads to Lawsuit

After a student failed to make her high school’s varsity cheerleading team, she posted a picture of herself to Snapchat captioned “[f]*** school f*** softball f*** cheer f*** everything” with her middle finder raised. The student was disciplined for allegedly violating school and team policies regarding banned use of foul language and tarnishing of the image of the school.

The student filed a lawsuit against the school district in the U.S. District Court for the Middle District of Pennsylvania raising three claims under 42 U.S.C. § 1983. The district court granted summary judgment in favor of the student, ruling that the student’s post was “off-campus speech,” “had not caused any actual or foreseeable substantial disruption of the school environment,” and thus was not subject to discipline. As a result, the student’s speech was protected by the First Amendment, and the school was precluded from punishing the student based on that speech.

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