Home » Perspective » Appeals court says parents, not schools, should discipline off-campus speech

By David L. Hudson Jr., published on July 22, 2020

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A recent federal appeals court decision shows that public school officials should be wary in attempting to discipline students for off-campus, social media expression. The arm of school authority covers events on school grounds but weakens considerably when the expression takes place outside schoolhouse gates. 


The case involved a female high school student, known in court papers as “B.L.”, who was upset that she did not progress from junior varsity cheerleading to the varsity squad. B.L. also was displeased about her role on a private softball team. On a weekend on her own time and away from school, she posted a Snapchat story with the caption: “F— school f— softball f— cheer f— everything.” 


A couple of teammates saw the Snapchat and told a cheerleading coach.  The coaches then kicked B.L. off the junior varsity cheerleading squad for a year. She responded with a federal lawsuit, alleging a violation of her First Amendment free-speech rights. 


A federal district court ruled in B.L.’s favor. The court found that school officials did not have authority to regulate off-campus profanity, and that the off-campus expression did not reasonably cause any type of substantial disruption under the Supreme Court’s landmark student free-expression decision, Tinker v. Des Moines Independent Community School District (1969).


On appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the lower court and also ruled in B.L.’s favor in B.L. v. Mahanoy Area Sch. Dist.  But the 3rd Circuit’s opinion was even more protective of student-speech rights.


The panel determined that “Tinker does not apply to off-campus speech.” Other courts have held that school officials must establish a clear connection or “nexus” between the off-campus speech and stuff that happens at school. Other courts use the term “reasonable foreseeability” of school disruption in response to off-campus speech. But the 3rd Circuit disagreed with these approaches, writing: “[W]e conclude that their approaches sweep in too much speech and distort Tinker’s narrow exception into a vast font of regulatory authority. We must forge our own path.” 


The appeals court emphasized that its approach provides even more clarity to school officials and students.


“That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.” 


The 3rd Circuit noted that B.L.’s speech was “crude,” “rude” and “juvenile.” But the appeals court wrote that “the primary responsibility for teaching civility rests with parents and other members of the community.”


The 3rd Circuit’s approach emphasizes that the arm of school authority should not be overextended. School officials are not parents and shouldn’t attempt to act like them. When students post rude and offensive speech off-campus, their parents should be the ones who decide on discipline. 


David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).


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