As expected, the Mahanoy Area School District has asked the Supreme Court to consider the Third Circuit’s decision in B.L. by and through Levy v. Mahanoy Area School District, 964 F.3d 170 (3d Cir. 2020), which I posted about back in July and which involved a high school cheerleader who, after learning that she did not make the varsity squad, posted a picture of herself and a friend to Snapchat with their middle fingers raised and the caption “Fuck school fuck softball fuck cheer fuck everything.”  The Third Circuit ruled for the student, and in doing so held that Tinker v. Des Moines Independent Community School District – which allows schools to discipline students for speech that “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” – does not apply, at all, to off-campus speech.  

It is easy to criticize the school’s punishment of the student as overreacting, and based on the facts as they were reported in the decision, the school might not have won the case even if the court had applied the traditional Tinker “material and substantial” test to the student’s Snapchat post. However, their decision to appeal the case is not an overreaction. The Third Circuit’s ruling that Tinker should never apply to off-campus student speech is a major departure from virtually every appellate court to consider this issue.

As much as I admire Professor Driver (his book “The Schoolhouse Gate” is actually sitting on my nightstand this very moment), I disagree with him on this case: schools must have some ability to regulate off campus, social media speech by students, at least to the extent that it reaches and disrupts the school community (which to some extent is the test that most appellate courts have settled on). Given the blurring of on- and off-campus speech, it is no longer clear what “the schoolhouse gate” encloses, and with the rise of cyberbullying (which is almost always aimed at a child because the bully knows the target from school, and almost always conducted at night, “off campus”), a categorical rule that schools can never discipline students for off campus, social media speech could have a catastrophic impact on individual students.

Remember: the Supreme Court has complete discretion as to which cases it decides to hear. That said, they haven’t heard a student speech case in over a decade, and have never heard a student social media speech case, so this petition may be granted. Stay tuned…..