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Can a School Punish a Student for Comments the Student Made Outside of School?

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Can a School Punish a Student for Comments the Student Made Outside of School?

It is common for parents to wonder whether or not a school has the right to tell their child what to do when he or she is not in school. The answer to this question is generally no, but it is complicated and depends on certain factors. The United States Supreme Court recently addressed this issue in the case entitled Mahanoy Area School District v. Levy, 141 S. Ct. 2038 (2021). In Levy, the Supreme Court stressed that while schools generally cannot regulate student speech outside of school, specific situations can arise when the school might have the ability to place certain limits on student speech.

Levy involved a high school student (the “Cheer Student”) who was on her high school’s cheerleading team. The Cheer Student wanted to be a part of her school’s varsity cheer team when she entered her sophomore year, but was only offered a position on the school’s junior varsity team. As the majority opinion stated, the Cheer Student “did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team.” The Cheer Student sent a photo and some messages to her friends on Snap Chat (about 250 people) that had a picture of her with a friend giving the middle finger and saying, “F*** school, f*** softball, f***, cheer f*** everything.”

A second image read, “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?”

The Snap Chats were not made on the school’s premises and were made after school hours. The Cheer Student did not send the Snap Chat to any of her coaches or teachers. The Cheer Student’s snap chats were brought to the school’s attention in a more circuitous manner. Someone who received the Snap Chat took a photo of it with another cellphone, and then circulated the Snap Chat to additional people. At some point, the photo of the Snap Chat made its way to a student whose mother was one of the cheer team’s coaches. The school responded by suspending the Cheer Student from the junior varsity cheer team for one year.

The Supreme Court held that the suspension of the Cheer Student violated her First Amendment right to free speech.

Students do not lose their First Amendment rights when they start high school. The Supreme Court has long recognized that students have free speech rights under the First Amendment, even when they are physically in school. A student’s First Amendment rights, however, are not as extensive as the First Amendment rights enjoyed by adults, at least when the student is physically in school. Generally, a school can limit what a student says in school, if the comments would or did cause a substantial disruption of the school’s operation. For example, a student cannot disrupt an algebra class by giving a political monologue in response to a question from the algebra teacher. Further, a school can prohibit a student from using vulgar or sexually inappropriate comments at a school assembly, or promoting illegal drug use at a school event. Until 2021, however, the Supreme Court had not addressed whether a school had the ability to limit or regulate a student’s speech outside of the school.

In Levy, the Snap Chats were made outside the school, and the Supreme Court acknowledged that a school’s ability to regulate student speech is limited. As the Supreme Court put it: “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.” The Supreme Court also stated that schools should protect a “student’s unpopular expression, especially when the expression takes place off campus.”

The Supreme Court refused to create a general rule to protect student speech that occurs outside the physical premises of the school. The Supreme Court did, however, recognize some situations where a school might be able to impose some control over student speech. These situations included, for example, remote learning, school-sponsored extracurricular activities that take place away from the school, when children are coming to school, and bullying of students by other students. In all of these situations, there exists a direct and strong connection between the student’s speech and the school.

In Levy, the Cheer Student used vulgar comments to criticize the cheer program and to cast the program in a negative light. Her statements, however, were not obscene, nor did they constitute “fighting words.” Further, the Cheer Student’s comments were not directly sent to the coaches or teachers, nor did they single out any specific individuals in the school. All those factors demonstrated that the school had a significantly diminished interest in regulating the Cheer Student’s speech. Nor did the school present any evidence that the comments substantially disrupted the operation of the school.

Accordingly, the statements made by the Cheer Student were protected by the First Amendment, and the school violated her First Amendment rights when it punished her for making those statements.

As demonstrated by this case, civil rights matters can be complex and often entail a variety of factors that can influence the outcome of the case. If you are facing a violation of your civil rights, it is essential to have an experienced attorney on your side. The Law Office of George M. Sanders P.C. will be your advocate. We work diligently to protect the rights of our clients through effective legal strategies. Contact us today to discuss the details of your situation.

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