Regulation of Off-Campus Student Speech: Key Take-Aways from the Supreme Court’s Holding in Mahanoy Area School District v. Levy

By Melissa Thiel Collar, Legal Counsel, Green Bay Area Public School District

On June 23, 2021, the United States Supreme Court issued an opinion on the often discussed, but not well understood topic of the ability of a public school district to regulate students’ off-campus speech. Mahanoy Area School District v. Levy, 594 U.S. ___ (2021).  Justice Breyer, writing for the majority, was reluctant to issue a bright line test as to what counts as “off-campus” speech and whether or how ordinary First Amendment standards must “give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”  However, the Court’s opinion provides helpful guidance to schools in analyzing when student off-campus speech may be regulated by a school district.  

The student's conduct in Mahanoy is not atypical of any high school student across the United States.  Upset that she did not make her high school’s varsity cheerleading team, while visiting the Cocoa Hut, a local convenience store, a high school student turned to her cell phone and Snapchat to vent her frustrations, sending out two “Snaps” to her followers with the captions, “F___ school f____ softball f____ cheer f____ everything” and “Love how me and [another student] get told we need a year of jv before we make varsity but that[t] doesn’t matter to anyone else?”  The Snaps were saved by some of the recipients and eventually made their way to the cheerleading coaches who were also teachers in the district.  After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with the extracurricular activity, they violated team and school rules and the student was suspended from the cheerleading team for one year.  The student apologized for her conduct and asked to be reinstated but the request was denied by the coaches, principal, superintendent and school board.  The student and her parents brought suit against the school district, alleging that the suspension was in violation of her First Amendment rights.

In an 8-1 decision, the Court held that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the Mahanoy Area School District were not sufficient to overcome the student’s First Amendment rights.  Significantly, relying on its holding in Tinker v. DesMoines Independent Community School District that schools have a special interest in regulating student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” the court found that the speech at issue created no material disruption and did not involve substantial disorder or invasion of the rights of others.  Applying Tinker to off-campus speech, the Court found that the following three features, when taken together, means that the leeway the First Amendment grants to schools in light of their special characteristics to regulate off-campus speech is diminished:

1. A school will rarely stand in loco parentis when a student speaks off campus - off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.  

2. From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.  That means courts must be more skeptical of a school’s efforts to regulate off-campus speech for doing so may mean the student cannot engage in that kind of speech at all, especially as it pertains to a student’s political or religious off-campus speech.

3. The school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.  

The Court also noted that the following features of the student’s speech, while risking transmission to the school itself, diminished the school’s interest in regulating the speech:

1. The posts, while crude, did not amount to “fighting words.”

2. While vulgar, the speech was not obscene and to the contrary, had she been an adult, the student’s speech would have found strong protection in the First Amendment.

3. The speech was made outside of school hours, from a location outside the school, transmitted on a personal cell phone, not a school issued device.

4. The speech did not identify the school.

5. The speech did not target any member of the school community with vulgar or abusive language.  

6. The audience of the speech was the student’s private circle of Snapchat friends.

7. The school’s interest in teaching good manners and therefore punishing vulgar speech was weakened by the fact that the speech was made outside the school on the student’s own time.  The school showed no evidence of any general effort to prevent students from using vulgarity outside of the classroom.

8. There was no reason to believe that the student’s parents delegated to school officials their control over the student’s behavior at the Cocoa Hut.  

9. There was no evidence of any substantial disruption of a school activity or a threatened harm to the rights of others.  A discussion of the matter took place in one high school class (taught by one of the cheerleading coaches) for 5-10 minutes over a couple of days and some of the members of the cheerleading team were “upset” about the content of the posts. When asked directly if she had any reason to think that this incident would disrupt class or school activities other than the fact that kids kept asking about it, the coach answered no.  

10. Despite being one of the bases for the suspension, there was no evidence that the off-campus speech caused a decline in team morale.  Rather, one of the coaches testified that they decided to suspend the student not because of any specific negative impact upon a particular member of the school community but “based on the fact that there was negativity put out there that could impact students in the school.”

11. The Court also offered that any First Amendment analysis of student off-campus speech would require an analysis of the student’s age, the nature of the school’s off-campus activity and the impact on the school itself.  

While the Court refused to issue a bright line test as to when a school may regulate off-campus student speech, the Court did offer that the following circumstances may implicate a school’s regulatory interests:

1. Serious or severe bullying or harassment targeting particular individuals;

2. Threats aimed at teachers or other students;

3. The failure to follow rules concerning lessons, the writing of papers, the use of computers or participation in other online school activities; and

4. Breaches of school security devices. 

It appears that the Court’s opinion supports the following analysis for off-campus, online student speech cases:

1. First is the speech-protected speech. True threats, fighting words, and obscenity, are outside the First Amendment’s ordinary protection and can be disciplined.

2. If the speech is protected, would it be reasonably understood that the student’s parents who enrolled their children in a public school delegated the authority to regulate the student’s speech in question to the school.  Schools will need to rely on the “nexus” test factors for this to determine if there is a sufficient connection to the school. See the features of the speech relied upon by the Court noted above are critical in determining if a nexus exists.

3. If there is a delegation of parental authority, is there a substantial disruption or invasion of the rights of others under the Tinker.

In closing, Justice Breyer noted, “It might be tempting to dismiss [the student’s] words as unworthy of the robust First Amendment protections discussed herein.  But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

The following checklist of questions will assist administrators in determining whether speech counts as “off-campus” speech and whether the school may regulate the speech: