Is a cheerleader’s vulgar Snapchat post about her school’s cheerleading squad protected, First Amendment speech?
1 July, 2021 by
Thomas W. Bailey
| No comments yet

Background:  In 2017, B.L., a freshman in the Mahanoy Area School District (District), tried out for the Varsity cheerleading squad.  She made the Junior Varsity, but not Varsity squad.  That weekend, B.L. and a friend posted two images on Snapchat.  The posts expressed their frustration with the District’s cheerleading squads and contained curse words and pictures of their raised middle fingers.

 Some of the B.L.’s Snapchat friends were on the District’s cheerleading squads.  Photos of the two posts were sent by her friends to other members of these squads.  One of the recipients was the daughter of a cheerleading squad coach.

 The coaches, athletic director and principal decided to suspend B.L. for one year from the Junior Varsity squad.  The Superintendent and Board of Directors affirmed the suspension.  B.L. and her parents sought to reverse the suspension unsuccessfully. 

 B.L. and her parents then sued the District in United States District Court (District Court) claiming the suspension violated her First Amendment freedom of speech.  The District Court agreed with B.L.  The District appealed that decision to the United States Court of Appeals, which also agreed with the District Court.  The District then appealed to the Supreme Court of the United States (Supreme Court).

 Issues on Appeal:  The District requested the Supreme Court decide whether Tinker v. Des Moines Independent School District, 393 US 503 (1969), which held that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech in this case that occurred off-campus?

 Supreme Court’s Opinion:  In Tinker two students wore peace sign armbands to their classes during the Vietnam War.  They refused to remove them when requested by school officials and were suspended as a result.  The students, through their parents, filed a lawsuit in United States District Court claiming the armbands were protected First Amendment speech and their armbands did not interfere with the work of the school.  Ultimately, the Supreme Court agreed with the students and forced the school to remove the suspension from their records.

 In B.L.’s case, eight Justices of the Supreme Court wrote that the same result of the Tinker case should be put into effect.   Justices Alito and Gorsuch filed concurring opinions. 

 These Justices set forth six types of off-campus student behavior that would require school regulation.   “These include 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.”

 The eight Justices however identified three features of off-campus student speech “that might call for special First Amendment leeway” outside the control of public school officials.  First, geographically off-campus speech will normally fall within the zone of parental responsibility.  Second, student political and religious speech, outside of a school program, will be difficult for schools to regulate.  Third, “America’s public schools are the nurseries of democracy” where student free speech needs to be practiced and protected.

 As a result, in June, 2021, the eight Justices determined the District’s desire to regulate B.L.’s vulgar Snapchat post violated her right to protected, First Amendment speech.  The District was ordered to pay B.L.’s attorneys fees and expunge the suspension from her school records.  Justice Clarence Thomas filed the sole dissenting opinion.

 Significance of Opinion:  The Court was brave enough to enter the realm of student, off-campus behavior that involves our public schools.  With the growth of online learning, I appreciate the Justices drawing lines in the sand as to the six off-campus student behaviors and speech that schools will retain, clear authority to regulate. 6-30-21

 Mahanoy Area School District v. B.L. No. 20-255, decision reported 6-23-2021   

Sign in to leave a comment