Regulating Off-Campus Speech: Guidance on the Way

Legal Brief

THE U.S. SUPREME COURT this spring will hear arguments in Mahanoy Area School District v. B.L., a Pennsylvania student’s challenge to her removal from the high school cheerleading team for posting a profanity-laced tirade on Snapchat after she failed to make the varsity squad. The court’s decision, expected by late June, should offer long-overdue clarity about regulation of students’ off-campus speech.

Here’s why the case is important to school administrators. In 1969, the Supreme Court decided Tinker v. Des Moines Independent Community School District, the landmark case addressing students’ free speech rights. The issue there was whether students could be suspended for wearing black arm bands to school to protest the Vietnam War. A sharply divided court ruled students enjoy a First Amendment right to express their views on controversial issues, even at school, as long as their behavior does not “materially and substantially disrupt the work and discipline of the school.”

With a few narrow exceptions carved out along the way, Tinker’s “substantial disruption” test has remained the governing standard, at least for conduct occurring on school grounds or as part of school-sponsored functions, such as school newspapers and other student media. But how much disruption is required to cross the line? And how does the Tinker test apply to private, off-campus behavior that causes disruption at school?