On June 30, 2020, the United States Court of Appeals for the Third Circuit issued a decision in the matter of B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020), ruling on a public school student’s federal Civil Rights Act claims arising out of a punishment that the student received for making a social media post over a weekend, away from school.
The student, identified in the lawsuit as “B.L.,” failed to make her high school’s varsity cheerleading team. Presumably frustrated, during a weekend away from school, B.L. posted a picture of herself and a friend raising their middle fingers to Snapchat with the caption, “f*** cheer,” although the expletives were written in full. At the time, she was a member of the high school’s junior varsity cheerleading team. A fellow student recorded this post and sent it to a cheerleading coach. The coaching staff determined that the “snap” violated school and team rules, including rules requiring cheerleaders to “have respect for [their] school,” avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches … on the internet.” As punishment for making this post to social media, B.L. was suspended from the junior varsity cheerleading team for the remainder of the year.
After B.L. was unable to persuade the team or the school to reinstate her, she filed a lawsuit under the Civil Rights Act, 42 U.S.C. § 1983, alleging that her suspension from the team violated her rights under the First Amendment; that the school and team rules she was said to have broken were overbroad and viewpoint discriminatory; and that the rules were also unconstitutionally vague. The District Court hearing the matter entered summary judgment in B.L.’s favor, finding that B.L. had not waived her constitutional rights to free speech by agreeing to the team’s rules, and further finding that her suspension from the team implicated the First Amendment even though extracurricular activities are a privilege. Deciding these threshold issues, the Court then turned to the substance, and found that the snap was off0-campus speech and not subject to regulation under Bethel School District No. 403 v. Fraser, 487 U.S. 675 (1986), and that the snap “had not caused any actual or foreseeable substantial disruption of the school environment.” The Court entered an award of nominal damages, and an order requiring an expungement of the disciplinary record.
On appeal, the Third Circuit distilled the questions before it to two: whether B.L.’s snap was protected speech; and if so, whether B.L. waived that protection. Ultimately, the Court concluded that the action of B.L. constituted off-campus speech, finding persuasive that (1) B.L. created the snap away from campus, (2) over the weekend, (3) without school resources and (4) she shared it on a social media platform unaffiliated with the school. Despite the expression referencing the school and it coming into contact with individuals connected with the school, the Third Circuit did not deem it sufficient to be on-campus speech that is subject to stricter regulation.
Next, it concluded that, as off-campus speech, the exception under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) did not apply.In that matter, the U.S. Supreme Court held that students can have broad access to free speech and cannot be punished for simply promoting uncomfortable and unpopular expressions for which the school officials do not want to contend. There must be a specific showing of constitutionally valid reasons to regulate the speech and it must assess whether the speech materially and substantially interferes with the requirements of appropriate discipline in the operation of the school. If it meets that latter standard, it could then be regulated accordingly. The Third Circuit found here that B.L.’s conduct expressing an uncomfortable off-campus expression failed to create such a disruption on campus to warrant regulation under the Tinker exception. It should be noted, however, that the Third Circuit chose not to address here the potential implications for off-campus speech that threatens violence or harasses others.