Public Schools Can’t Control Students’ Private Speech
Thomas A. Berry and Stacy Hanson
B.L., a high school sophomore at a Pennsylvania public school, didn’t make the varsity cheerleading team. She took to Snapchat to voice her frustrations and posted a picture of herself and a friend holding up their middle fingers, adding a caption with some F‐bombs. When the picture was brought to the attention of the cheer coaches, B.L. was suspended from the junior varsity cheerleading team for the year.
Through her parents, B.L. sued the school district for violating her First Amendment rights, arguing that the school could not punish her for off‐campus speech that did not occur in a school‐sponsored forum or bear any mark of approval or endorsement by the school. Both the district court and the Third Circuit ruled in B.L.’s favor. The school district appealed to the Supreme Court, which granted review.
Cato now joins the Pacific Legal Foundation and satirist P.J. O’Rourke in a merits brief supporting B.L. at the Supreme Court. We argue that the distinction between on‐campus and off‐campus speech must not be blurred to expand schools’ power at the expense of students’ First Amendment Rights. B.L. was punished for speech that was created off campus, on the weekend, from her personal phone and social media account. As the Third Circuit correctly explained, allowing such speech to fall under the disciplinary purview of public schools would give school administrators “the power to quash student expression deemed crude or offensive – which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.”
Such an expansion of school authority would not only harm students but also infringe parents’ rights to raise and discipline their children as they see fit. Further, it would displace law enforcement’s responsibility to investigate behavior that poses a threat or otherwise violates the law. Instead, schools should only be permitted to regulate student speech when the speech occurs in a place or time controlled and supervised by school staff, and only when necessary to address objective disruption of the learning environment.
Over 50 years ago in Tinker v. Des Moines, public schools were instructed that students do not shed their constitutional rights at the schoolhouse gate. Likewise, it’s time to remind schools that students do not shed their constitutional rights outside those gates either. Public schools should not be able to monitor students’ speech 24 hours a day, 7 days a week, and suppress student speech merely because they disagree with the message. We urge the Court to reaffirm its long‐standing protections for First Amendment rights and affirm the Third Circuit.
The Supreme Court will hear arguments in Mahanoy Area School District v. B.L. on April 28.