Today, the National School Boards Association (NSBA) filed an amicus brief in Mahanoy Area School District v. B.L. urging the U.S. Supreme Court to overrule a troubling lower court decision that would limit public school officials’ ability to address online student speech that originates off-campus. NSBA explains in its brief that the physical location of a student’s speech is irrelevant in today’s socially distanced and social media-fueled world, adding that schools will be hampered in their duty to address harmful online speech--including bullying—if such a limitation remains.
In Mahanoy, just one of a handful of student speech cases the U.S. Supreme Court has heard in the last fifty years, a student sued her Pennsylvania school district after she was removed from the cheerleading squad for posting a profane rant against the school’s cheer and softball programs on Snapchat. The U.S. Court of Appeals for the Third Circuit ruled that school officials have no right to regulate student speech that originates off campus—no matter how disruptive or damaging to the school environment. In doing so, the brief NSBA argues, the Third Circuit ignored more than 50 years of precedent and put at risk countless state laws protecting students from online messages that bully, harass, or threaten their physical safety.
“Today’s realities, including those we all face as a result of the pandemic, heighten the challenges around the impact of speech,” said Anna Maria Chávez, Executive Director and CEO of NSBA. “No one wants to unnecessarily restrict speech as students learn to use their voices and offer their opinions. However, thanks to social media, off-campus, online messages have tremendous potential to disrupt on-site learning, threaten student safety, and cause significant emotional harm to students. The Supreme Court should continue the established practice of judicial deference to professional educators to address concerns over student speech and its impact on the school setting.”
In 1969, the U.S. Supreme Court ruled in Tinker v. Des Moines Independent Community School District that students retain important free speech rights when on school grounds, but that school administrators may also intervene when student speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” For more than 50 years, Tinker has remained the law of the land, with every circuit and state high court rejecting the argument that the Tinker “substantial disruption” standard is strictly limited to on-campus speech.
“First decided more than 50 years ago, the Supreme Court’s ruling in the landmark case Tinker v. Des Moines Independent Community School District has stood the test of time and provided a vital, but flexible, gauge to evaluate student speech and its potential to impact student learning,” said Francisco M. Negrón, Jr., NSBA’s Chief Legal Officer. “We urge the U.S. Supreme Court to overrule the Third Circuit’s decision and retain the Tinker framework as interpreted by the majority of federal circuits to allow schools to address student speech that adversely impacts student learning.”
To learn more, read NSBA’s amicus brief.