According to the U.S. Supreme Court, neither students nor teachers “shed their constitutional rights to the freedom of speech at the schoolhouse gate” (Tinker v. Des Moines Independent Community School, 1969). However, the court said schools may regulate or discipline students for speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Several federal circuit courts have applied the school’s authority under Tinker to offcampus speech when it creates a foreseeable risk of substantial disruption on campus.

In the age of social media, COVID-19 and an increasingly polarized society, it is easier than ever for off-campus speech to disrupt the school setting. To complicate matters further, remote learning has expanded the traditional definition of “on-campus.”

In the Second Circuit, with jurisdiction over New York, the law is clear that schools can regulate and discipline students for off-campus speech that “foreseeably creates a risk of substantial disruption within the school environment.” [See Doninger v. Niehoff (2008) and Wisniewski v. Board of Educ. of Weedsport Cent. School Dist. (2007).]

Similarly, in the Ninth Circuit, with jurisdiction over seven western states as well as Alaska and Hawaii, it must be “reasonably foreseeable the speech will reach the school community,” and the speech must have a sufficient “nexus” to the school [See McNeil v. Sherwood School Dist. (2019).]

However, on June 30, 2020, the Third Circuit, with jurisdiction over Pennsylvania, New Jersey, and Delaware, issued a controversial ruling that surprised many school attorneys. In B.L. by and through Levy v. Mahanoy Area School District, the Third Circuit declared that a school’s ability to regulate disruptive student speech under Tinker does NOT extend to offcampus speech. This view clashes with the standards adopted by the Second, Fifth, Eighth and Ninth Circuits. Such a sharp conflict between circuits makes Supreme Court intervention possible in the future.

This article will discuss the Third Circuit’s reasoning as compared to that of the Second Circuit.

Third Circuit views off-campus speech as protected

In B.L. by and Through Levy v. Mahanoy Area School District, the plaintiff was a cheerleader at Mahanoy Area High School in Pennsylvania. After she failed to win a spot on the varsity team, she used Snapchat to post a photo of herself and a friend extending their middle fingers with a caption reading: “F--- school, f--- softball, f--- cheer, f--- everything.” She also added a second text post bemoaning her placement on junior varsity. Upon becoming aware of the posts, Mahanoy school officials suspended B.L. from cheerleading. B.L.’s parents filed a lawsuit alleging violation of B.L.’s First Amendment rights.

Initially, the issue was whether this off-campus speech was disruptive enough to trump the student’s right to express herself as guaranteed by the First Amendment and Tinker. The federal district court ruled in favor of B.L. and held that her “snap” was off-campus speech that had not created any foreseeable disruption in the school setting.

Mahanoy School District appealed and the Third Circuit affirmed, but not on the narrow grounds set forth by the district court. Rather, a divided panel held “that Tinker does not apply to off-campus speech…”

Generally, judges tend to favor settling cases on the narrowest grounds possible.

However, in Mahanoy, the Third Circuit offered not one but three rationales for its conclusion. First, it said Tinker makes sense inside a school where other students are a “captive audience.” Tinker’s application loses that rationale, said the court, when applied to off-campus speech. Second, the volume of student speech found on social media is prodigious. This may tempt school officials to regulate student speech that officials deem “inappropriate, uncouth or provocative,” and not merely speech that is foreseeably disruptive. Third, a new bright-line rule will provide clarity to both students and school-officials trying to navigate the minefield of off-campus student speech.

The impact of the Mahanoy decision is substantial in Pennsylvania, New Jersey and Delaware. Districts in those states that impose discipline for off-campus speech because it is “disruptive” could pay monetary damages for violating student First Amendment rights.

While Mahanoy does not set a precedent for other jurisdictions, it could influence courts elsewhere. Mahanoy stands in sharp contrast to the positions adopted by other federal circuits, including the Second Circuit, and creates uncertainty regarding student discipline and off-campus speech.

Second Circuit precedents still apply in New York

In Wisniewski v. Board of Educ. Of Weedsport Cent. School Dist. (2007), the Second Circuit considered the suspension of an eighth grader named Aaron Wisniewski who had used a home computer to send online emojis of a gun firing into a person’s head and blood droplets. The caption read, “Kill Mr. VanderMolen” (referring to the student’s teacher). Upon its review, the Second Circuit upheld a one-semester suspension for Wisniewski because his conduct had created the “foreseeable risk” that it would “materially and substantially disrupt the work and discipline of the school.” The court thereby allowed schools to discipline students for off-campus speech that created “a foreseeable risk of substantial disruption within” the school.

The Second Circuit reaffirmed this position one year later in Doninger v. Niehoff. Seventeen-year-old Avery Doninger was upset about the postponement of a “battle of the bands” concert at her high school. A member of the student council, she and three others widely distributed an email that urged members of the school community and public at large to contact the school principal and superintendent to restore the original date of the event. School officials received so many calls that the superintendent left an off-campus event and returned to school to deal with the issue. After being warned about the disruptive aspects of her activism, Doninger persisted. She blogged about the event and referred to school officials as “douchebags.” As a form of discipline, the superintendent prevented her from being a candidate for senior class secretary, which she said violated her free speech rights.

The Second Circuit upheld the federal District Court’s denial of a temporary restraining order. The Second Circuit found that the blog post had “foreseeably create[d] a risk of substantial disruption within the school.” The court held that the language

In the post was offensive and had used misleading or false information to create a greater disturbance. Notably, the Second Circuit confirmed that school officials need not demonstrate an actual disturbance to prevail. Rather, they only need to show conduct that might “reasonably portend disruption” [quoting LaVine v. Blaine Sch. Dist. 9th Circuit, 2001)].

Moreover, the court noted that the punishment at issue was a ban from an extra-curricular activity. This was not the same as a prohibition of participation in the educational component of school, which might raise greater constitutional concerns.

Wisniewski and Doninger are in direct conflict with Mahanoy. Whether the “f--- cheer” post of Mahanoy was foreseeably disruptive is a question of fact (certainly the District Court for the Middle District of Pennsylvania did not think so). Similarly, under the Wisniewski and Doninger standard, it could be argued that the speech created a foreseeable risk of substantial disruption. However, under the standard adopted in Mahanoy, all off-campus would be off-limits for school officials.

Such a disparate application of federal law could prompt the U.S. Supreme Court to review the Tinker standard in another case involving the First Amendment rights of students or teachers. In such case, the Supreme Court could apply stare decisis and uphold Tinker. Or, the court could find a justification for changing the standards set in Tinker, such as adopting the Third Circuit’s view that Tinker has been become outdated in light of the sheer volume and nature of speech found on social media.

Many decisions by New York’s commissioner of education have relied on the Tinker standard. Any change in that standard by the Second Circuit or Supreme Court would impact decades of administrative precedent.

It is also worth noting that school districts are obligated to investigate off-campus behavior that could violate the state’s Dignity for All Students Act (DASA), as well as remediate any violations found (remediation can include discipline). So even if the Tinker standard changed, districts in New York State may still be obligated under DASA to investigate and respond to certain forms of off-campus speech.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Dennis O’Brien and Christie R. Jacobson of Frazer & Feldman LLP.