By Kevin Lungwitz
Until the U.S. Supreme Court’s 2021 decision in Mahanoy Area Sch. Dist. v. B.L., the high court had only written four decisions that directly confronted student free speech in PreK-12 public schools.1 Mahanoy makes five, but it is the only one to fully address student speech made outside of school, and the only student speech SCOTUS case where the student prevailed.2 Courts expect a reasonable school administrator to know about the big, relevant SCOTUS cases, so here is a review of the SCOTUS cases on student free speech.
Mahanoy Area School District (vulgar speech outside of school)
High school student B.L. failed to make the school’s varsity cheerleading squad, and instead was placed on the J.V. squad. On her own time, on her own phone, and away from school over the weekend, B.L. posted two images on Snapchat expressing her frustration. One contained vulgar language and gestures (“F*** school, f*** softball, f*** cheer, f*** everything”) Other students took screenshots of the Snapchat post and shared them among the school community. Despite B.L.’s apologies, the school kicked her off the J.V. squad. She and her parents sued.
The SCOTUS held that B.L.’s conduct was beyond the school district’s disciplinary jurisdiction, and thus the school violated her free speech rights. The Court noted that B.L. was acting as a citizen, on her own free time, with a right to express her critical views. Her post did not identify the school. It did not abuse or bully a member of the school community. It did not incite violence. Importantly, it did not substantially disrupt the school environment.
Take away: Students are civilians with civil rights. Those rights vary depending on the time and place of the event. Always consult the school lawyer before you discipline a student for speech outside of school, because those instances are limited and were not present in this case.
The next four cases involve student speech made at school. As will be seen, the school’s right to regulate and discipline in-school speech is heightened.
Tinker v. Des Moines Indep. Community School Dist. (1969) is the grandma of all the SCOTUS student speech cases, the one to which almost every other such case is compared.3 Here, students who wore black arm bands to protest the Vietnam War were suspended. They sued and won. The SCOTUS established the “substantial disruption” standard by which so many student speech cases are analyzed:
The record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These [students] … neither interrupted school activities nor sought to intrude in the school affairs … They caused … no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.4
Tinker is still cited in almost every student free speech case because so many of these types of cases turn on the question of “substantial disruption.”
Other courts have said that school officials need not wait until there is actual disruption before suppressing potentially harmful speech. In a case where a principal banned all forms of the confederate flag from campus based on racial tension and previous fights, the principal reasonably forecasted potential violence if he failed to act. He got sued, but the Fifth Circuit Court of Appeals ruled in his favor:
[Some] read Tinker too narrowly, effectively requiring school officials to wait for the speech to cause disruption before acting … [but] administrators may [ban certain] speech if there are facts “which might reasonably have led school authorities to forecast substantial disruption of … school activities.”5
Take away: If student speech substantially disrupts, or could substantially disrupt the school environment, you may regulate the speech and/or discipline the offenders. Have facts to support your prediction of substantial disruption.
In Hazelwood School Dist. v. Kuhlmeier (1988), students sued when school officials refused to print two student-written articles in a school newspaper addressing teenage pregnancy and divorce.6 “Imprimatur” is a fancy word for “bearing the stamp of approval.” The SCOTUS said school officials maintain complete control over school news outlets, websites, plays, music performances, yearbooks, etc., because those things could be seen by the community as bearing the imprimatur of the school district.
Take away: School officials get to control the content and form of the school’s speech and anything that might reasonably be mistaken for official school speech.
Fraser (vulgar speech in school)
In Bethel School District No. 403 v. Fraser (1986), a student gave a speech at a high school assembly in support of a candidate for student government office, in which he made several crude, sexual innuendos.7 School officials suspended him for three days and he sued. The Supreme Court ruled for the school officials, giving them the right to suppress “vulgar, lewd, obscene, and plainly offensive” speech:
The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board … Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint … A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.8
Take away: Mahanoy says be very careful about suppressing off-school speech. Fraser says you can suppress lewd, vulgar in-school speech, and discipline accordingly.
Morse (harmful drug speech)
This is the weirdest of the five cases and is a bit of an outlier. In Morse v. Frederick (2007), a high school student displayed a large banner that said, “BONG HITS 4 JESUS,” during a school-sanctioned event.9 The principal believed the banner promoted illegal drugs so she confiscated the banner and suspended the student, who then sued. The SCOTUS ruled in favor of the principal, concluding “that deterring drug use by schoolchildren is an important, indeed, perhaps compelling interest.”10 We’ll end with a very principal-friendly quote from the SCOTUS:
School principals have a difficult job, and a vitally important one. When [the student] suddenly and unexpectedly unfurled his banner, [the principal] had to decide to act-or not act-on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use … The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.11
Take away: You can suppress drug and alcohol speech and discipline students for it.
Student speech cases are tricky. Despite the take-aways above, always consult legal counsel before disciplining a student for what could arguably be free speech.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
1Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021).
2Supreme Court of the United States.
3Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733 (1969).
4Id. at 514.
5A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009), citing Tinker.
6Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 (1988).
7Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986).
8Fraser, at 683-86.
9Morse v. Frederick, 127 S.Ct. 2618 (2007)
10Id. at 2628.
11Id. at 2636.
TEPSA News, November/December 2022, Vol 79, No 6
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