On Campus or Off Campus – That is Still the Question: Mahoney Area Sch. Dist. v. B.L. and the Supreme Court’s New Digital Frontier

By Kristopher L. Caudle

On campus or off campus – that is still the question for school officials following the Supreme Court’s recent First Amendment opinion: Mahoney Area School District v. B.L., 594 U.S. ___, 141 S. Ct 2038, 2021 U.S. LEXIS 3395 (2021). For more than 50 years, the Supreme Court has managed to balance two competing First Amendment principles: (1) that a student does not shed all of their free speech rights at the “schoolhouse gate,” and (2) that public school officials have a special interest in regulating certain aspects of student speech that may cause a material and substantial disruption to the school environment. See Tinker v. Des Moines, 393 U.S. 503, 506-07 (1969).

Since the Supreme Court’s landmark decision in Tinker, most of the Court’s student speech jurisprudence has hinged on a fundamental (and outdated) presumption: that the student speech at issue occurred on a school’s campus, within the context of a traditional school day. This presumption has quickly given way to a new frontier of 21st century student speech questions, emerging in novel digital contexts (i.e., online/remote learning platforms, text messaging, group chats, social media, and live-streaming technologies) quite different than the traditional in-person settings that formed the Court’s student speech doctrine: e.g., symbolic speech protesting the Vietnam War at school (Tinker), sexual innuendo in a student’s speech at a school assembly (Fraser), censorship in a school’s printed newspaper (Hazelwood), or a student poster board promoting illegal drug activity (Morse).

In Mahoney Area School District v. B.L., the Court attempted to bring the Tinker doctrine into the digital age but left most of the heavy work for future courts. In B.L., the Court held, in an 8-1 decision, that a school district violated the First Amendment by disciplining a student for making social media posts on Snapchat using vulgar comments that were critical of her cheerleading team, when that speech occurred off campus, outside of school hours, and on her own personal cell phone device.

In B.L., the Court acknowledged that the special interest school officials have in regulating on campus student speech under the Tinker doctrine may extend to some, but not all, areas of speech that occur off campus. Although the Court emphasized the importance of the “on-campus” and “off-campus” distinction in its analysis, it stopped short of explaining exactly what counts as “off-campus” speech or even how ordinary First Amendment principles should apply to off-campus speech. Ultimately, B.L. offers little more than guideposts on the opposite ends of the student speech spectrum for school officials and education lawyers alike. Still, the message from B.L. is clear. Regulation of purely off-campus student speech raises First Amendment concerns.

Navigating the On-Campus vs. Off-Campus Distinction

A necessary starting point for the Court’s analysis was the Third Circuit Court of Appeals’ opinion below. Previously, the Third Circuit had held that student speech occurring on campus could be regulated consistent with Tinker, but that all student speech occurring off campus was categorically barred from regulation under the First Amendment. See B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020).

The B.L. Court abandoned the Third Circuit’s rigid “all-or-nothing” approach, acknowledging the complex nature of the “on-campus” versus “off-campus” distinction. Rather than employing a formal definition for off-campus activity or a “broad, highly general, First Amendment rule” to determine the framework of “off-campus” speech, the Court renewed its focus on the necessity of regulating student speech at all: orderly and effective instruction. B.L., 2021 U.S. LEXIS 3395, at 13-14. To that end, the Court articulated three features of off-campus speech that, in its opinion, diminish the need for regulation of off-campus student speech.

First, schools rarely stand In Loco Parentis for students when speech occurs off campus. Thus, parents (and not schools) should fulfill the primary role of disciplinarians responsible for a child’s off-campus conduct. Second, in our society, adolescents are full-time students, and a large part of their daily life occurs on campus. Additional regulation of off-campus student speech, combined with regulation of on-campus speech, would be tantamount to regulating all the speech a student utters in a 24-hour day. Finally, schools are the “nurseries of democracy,” tasked with ensuring a well-educated populace. In that sense, a school’s primary interest should be in promoting “the marketplace of ideas” and protecting, rather than suppressing, unpopular student speech that might occur off campus. Id. at 15.

Guideposts For Future Courts

Education lawyers and school officials can expect to see the Court’s three features prominently positioned in future court decisions post-B.L. In advising K-12 public school officials about the scope of off-campus speech, education lawyers should address two fundamental questions: (1) Was the speech given on campus; and if not, (2) Did the off-campus speech occur under circumstances where the parent can be said to have consented for the student’s speech to be regulated?

Was the Speech Rendered On Campus?

If the student speech clearly occurred on campus, then a traditional Tinker analysis should still be applied. For example, speech rendered at the school, during in-class instruction; during periods where students are in school but not in class, such as “walking the hall, eating lunch, congregating outside before the school day starts, or waiting for a bus after school,” should still fit squarely into on-campus activity under Tinker. Id. at 29. The physical location of the speech (in-person and on a school’s campus) is still a natural starting point for this analysis but is not entirely dispositive given advances in modern technology and hybrid distance learning models.

If the Speech Occurred Off Campus, Did it Occur Under Circumstances Where the Parent Consented For the Student’s Speech to Be Regulated?

The scope of student speech occurring off campus is much less clear following B.L. For speech occurring off campus to be actionable, many factors should be considered, including the physical location of the student, the age of the student, and the context of the speech. However, the central question for courts is this: “whether parents who enroll their children in a public school can reasonably be understood to have delegated to the school the authority to regulate the speech in question?” Id. at 32. Although the actual degree of delegation given by a parent will vary from case to case, the more a parent has consented for their child to be disciplined for speech made off campus, the more likely it would seem to still fall within a normal Tinker “substantial disruption” analysis. Id. at 32-33.

The Spectrum of Student Speech

As the Court explained, a helpful analogy for school officials is to think of student speech on a spectrum.  On one end of the spectrum, several areas of off-campus speech are seemingly interchangeable with on-campus speech and should still lend themselves to the traditional Tinker analysis. Examples might include, speech occurring in online/remote instruction, on school trips, within school sports, extracurricular programs or activities that take place after regular school hours or off school premises, and after school programs. Id. at 32-33.[1] In each of these areas, if the speech is given while the student is participating within a school’s program or activity, it would seem to be a direct extension of the school’s on-campus environment, and arguably still within the scope of the Tinker doctrine.

On the opposite end of the spectrum is an area of student speech “almost always beyond the regulatory authority of a public school.” Id. at 34. This includes off-campus speech that is “not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern.” Id. This could include sensitive subjects like politics, religion, and social relations, as well as speech that is merely unpopular, or offensive, intemperate, or crude. See id. at 35-37. This form of off-campus speech, without more, will likely fall outside the regulation of school officials, particularly when, as in B.L., the speech is rendered on a personal device, via private messaging or personal social media platforms, outside of school hours and not directly as part of the school’s program or activity. See id. at 35-38.

The difficult cases for school officials and future courts will lie somewhere in between the opposite ends of the spectrum. Although the Court declined to provide an exhaustive list, this type of speech would typically include comments that amount to “perceived threats,” criticism, as well as “bullying and severe harassment” of school administrators, teachers, other staff members, or students.[2] Id. at 37-38.

Key Takeaways For Education Lawyers

Remote Learning Platforms

The Court and the parties seemed to agree that most speech made within the context of online/remote learning platforms, although occurring off campus, could still be treated interchangeably with traditional on-campus speech. However, administrators should take special care to recognize the nuances that physical distancing through an online/remote platform might add, or take away, from a substantial disruption analysis.

Parents, Not Schools, Regulate Off-Campus Speech

In the Court’s words, “parents, not the State, have the primary authority and duty to raise, educate and form the character of their children.” Id. at 30-31. School officials should continue to keep this principle in mind when reviewing messages forwarded by employees, coaches, students, parents, and community members other than the speaker’s parents, regarding a student’s off-campus speech.

Extracurricular Activities

Perhaps the biggest lingering question from B.L. is the potential impact of off-campus student speech in extracurricular activities, particularly in a school’s sports programs. In one part of its opinion, the Court concedes that participation in extracurricular activities, off-school premises, and outside of school hours, may still give rise for the need to regulate student speech (although not in this case). Id. at 29, 33-34. The Court also bases much of its rationale in B.L. on whether a parent consents for their child’s speech to be regulated off campus, something that would typically occur, at least implicitly, in an extracurricular setting. Id. at 25-26, 32-33.

As the dissent noted, the fact that B.L. was participating as a school cheerleader in an extracurricular activity at her school was given “little apparent significance” in the decision. Id. at 50. In addition, B.L. acknowledged before joining her cheerleading team that she would abide by team rules and “‘have respect for [their] school, coaches, . . . [and] other cheerleaders’; avoid ‘foul language and inappropriate gestures’; and refrain from sharing ‘negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.’” See B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 176 (3d Cir. 2020). These facts were part of the record in the case but were not even mentioned in the Court’s majority or concurring opinion.