Important Court Ruling: The “Tinker” Rule is Inapt to Off-Campus Student Speech in Pennsylvania

On June 30, 2020, the Third Circuit Court of Appeals – the federal appellate court that governs cases from Pennsylvania – held in B.L. v. Mahanoy Area School District, that a longstanding First Amendment rule only applies to “on-campus” student speech, not to “off-campus” student speech.

In a landmark 1969 decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that although students do not “shed their constitutional rights to freedom of expression at the schoolhouse gate,” school may regulate student speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Accordingly, student speech may be prohibited under Tinker if school officials can show a specific and significant fear of disruption.

The Third Circuit ruled in B.L., though, that with limited exceptions, student speech occurring off-campus, without the use of school district equipment or technology, cannot be regulated or disciplined regardless of the extent of disruption it may cause to school operations.

In B.L., a student who was cut from the varsity cheerleading squad posted on her Snapchat account a picture of herself and her friend with their middle fingers raised with the following caption: “Fuck school fuck softball fuck cheer fuck everything.” The student had been assigned to the Junior Varsity cheerleading squad, but as the result of other students and coaches being upset by her Snapchat post, the school district removed her from the J.V. cheer team. Naturally, her parents (assisted by the ACLU) sued the district.

The Third Circuit engaged in a lengthy analysis of the law, and ultimately concluded that the Tinker exception for speech disrupting school operations does not apply to off-campus student speech. The Third Circuit also ruled that the student had not waive her First Amendment rights by signing an agreement to respect the school, to avoid the use of foul language, and to conduct herself in a manner to not tarnish the image of the school district. The Third Circuit upheld a trial court’s ruling in favor of the student.

Notably, the Third Circuit indicated that its decision does not prohibit schools from regulation of off-campus student speech under the following circumstances:

• Off-campus speech that a student brings onto campus, such as by showing a classmate a Facebook post from the night before.
• Off-campus speech that threatens violence or harasses particular students or teachers.
• Off-campus speech that is made utilizing school equipment or technology.
• Off-campus speech that promotes illegal drug use, such as in the Supreme Court’s “Bong hits for Jesus” decision in Morse v. Frederick, 551 U.S. 393 (2007).

It is uncertain at this point whether Mahanoy Area School District will seek to appeal the Third Circuit’s decision to the U.S. Supreme Court. Unless and until the Third Circuit’s decision is reversed, it is the “law of the land” in Pennsylvania.

Although this decision may restrict the ability to formally control many instances of off-campus student speech, even where school districts cannot dictate what students may say or do, often you can nonetheless persuade students (or their parents) that their words or actions are inappropriate and should cease.

We are glad to address this issue in further detail, or to assist in the event you are dealing with the complicated issue of student freedom of speech.

Please contact members of KKLL’s Education Law team with any questions.

We hope you find this issue of KKLL’s Education Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.

If you have any questions regarding any education law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717-392-1100, or email us at the following addresses:

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Clarence C. Kegel, Jr.                      
Howard L. Kelin                                
Jeffrey D. Litts                                    
Rhonda F. Lord                                 
Jason T. Confair                            
Benjamin L. Pratt                             
Kay Mercein Mann                         
Katie L. Summers                     

Kegel Kelin Litts & Lord LLP is a regional law firm with offices in Lancaster, Pennsylvania. KKLL is solicitor and general counsel to 25 school districts and joint school systems – and bond counsel, finance counsel, or special joint counsel to many others in Central and Eastern Pennsylvania. In addition, KKLL frequently serves Pennsylvania school districts for unusual and challenging problems, projects, or litigation.

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