In today’s ruling in Mahanoy Area School District v. B.L., the Supreme Court, by a vote of 8 to 1 (Justice Thomas in dissent), held that a public high school violated the First Amendment rights of a student when it suspended her from the cheerleading team in punishment for vulgar language and gestures that she sent to her Snapchat friends during a weekend trip to a local convenience store.
In this post, I’d like to compare Justice Breyer’s majority opinion with Justice Alito’s concurring opinion on the topic of First Amendment protections for K-12 students’ off-campus speech. The two opinions have much in common, and both, to be sure, leave a lot of questions open. But Alito’s opinion more clearly undertakes to provide an analytical framework for addressing those questions, and it promises, I think, to resolve them in a way that is more protective of student speech.
In his majority opinion for eight justices (including Alito), Justice Breyer rejects the Third Circuit’s categorical rule that a public school could not punish a student for off-campus speech. He then identifies three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” for the schools. First, a school “will rarely stand in loco parentis” (in the place of parents) regarding off-campus speech. Second, a school’s general regulation of a student’s off-campus speech would mean that the school is able to regulate all of the student’s speech, and that is especially troubling with respect to “political or religious speech.” Third, schools should protect unpopular expression, especially when off campus. Beyond that, Breyer throws up his hands:
Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.
Uh, thanks for the guidance.
Breyer does go on to explain how in this particular case the school’s interest in prohibiting students from using vulgar language to criticize a school team or its coaches was weak.
In his concurring opinion, Justice Alito, joined by Justice Gorsuch, poses the elementary question how a public school has any authority to “regulate[] what students say or write when they are not on school grounds and are not participating in a school program.” His response:
The only plausible answer that comes readily to mind is consent, either express or implied. The theory must be that by enrolling a child in a public school, parents consent on behalf of the child to the relinquishment of some of the child’s free-speech rights….
So how much authority to regulate speech do parents implicitly delegate when they enroll a child at a public school? The answer must be that parents are treated as having relinquished the measure of authority that the schools must be able to exercise in order to carry out their state-mandated educational mission, as well as the authority to perform any other functions to which parents expressly or implicitly agree—for example, by giving permission for a child to participate in an extracurricular activity or to go on a school trip.
When it comes to off-campus speech, Alito argues, “enrollment [in a public school] cannot be treated as a complete transfer of parental authority over a student’s speech.” On the contrary, “In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children,” and they “do not implicitly relinquish all that authority when they send their children to a public school.”
Alito identifies “a category of [off-campus] speech that is almost always beyond the regulatory authority of a public school”: “This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations.” He observes that “[p]erhaps the most difficult category [of off-campus speech] involves criticism or hurtful remarks about other students.” On the one hand, “[b]ullying and severe harassment are serious (and age-old problems); on the other, “these concepts are not easy to define with the precision required for a regulation of speech.”
More generally: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”