Most speech is protected against criminal punishment, or civil liability; but some such otherwise protected speech can still lead to administrative discipline from public K-12 schools:
- Speech may lead to discipline because it seriously risks material disruption of school work (that’s the Tinker exception).
- It may lead to discipline if it uses vulgarities or sexual innuendo (that’s Fraser).
- And it may be restricted because it seems to advocate illegal drug use (that’s Morse) without any visible political message (that’s Morse).
You can read more about these exceptions in this 2016 post, but for now let’s focus on two questions: (A) Does the school have less power to discipline students for off-campus speech (so that these three exceptions basically don’t apply to off-campus speech)? (B) Does the school have more power to eject students from optional programs (sports teams, cheerleading, student government and the like) even for speech that can’t lead to suspension or expulsion from school?
The answer to (A) turns out to be complicated and unsettled. Generally speaking, courts are split on whether off-campus speech can lead to discipline if it seriously risks leading to disruption on-campus (the Tinker exception), though the tendency seems to be to allow such discipline (and thus not fully protect off-campus speech). But the Supreme Court has said that the Fraser and Morse exceptions don’t apply to off-campus speech (unless the speech is at an off-campus school activity), so students can’t be punished in school for out-of-school vulgarity.
The answer to (B) is even less clear; but a district court decision this month, B.L. v. Mahanoy Area School Dist. (M.D. Pa.), concludes that cheerleaders can’t be ejected from the squad for off-campus vulgarities. Here are the facts:
On May 28, 2017, [B.L.] posted a “Snap” featuring a photo of her and a friend holding up their middle fingers with the text, “f––– school f––– softball f––– cheer f––– everything” superimposed on the image. Plaintiff took the Snap at the Cocoa Hut — a local convenience store — on the weekend when she was not participating in any school activity. Notably, this Snap did not specifically mention the High School or picture the High School. Further, the Snap was only shared with Plaintiff’s friends on SnapChat, and thus was not available to the general public.
B.L. was then “dismissed from the cheerleading squad,” on the grounds that “the Snap was ‘disrespectful’ to the coaches, the school, and the other cheerleaders.”
Not allowed, says the court. First, as to issue (A),
While courts have allowed schools to punish a student for out-of-school speech that was reasonably expected to substantially disrupt the school, the Supreme Court has noted that schools have no power to punish “lewd or profane” speech — as described in Fraser — when it occurs outside of the school context…. [T]he ability of a school to punish lewd or profane speech disappears once a student exits school grounds…. [And, under Third Circuit precedent, controlling in this Pennsylvania case,] “a school could not punish a student for online speech merely because the speech was vulgar and reached the school.”
And as to issue (B),
[The School District] seeks to have this Court hold that a student may be punished for out-of-school speech so long as the punishment does not encroach on what the District refers to as a “protected property interest.” In other words, the District can levy any punishment it chooses so long as they do not suspend or expel a student. As the District’s counsel made clear at the hearing, such holding would mean that a student could be barred from an extracurricular activity if they were at home with friends and uttered a profanity that was subsequently reported to the school. In essence, counsel suggests interpreting this Circuit’s jurisprudence to allow school children to serve as Thought Police — reporting every profanity uttered — for the District. Such construction is “unseemly and dangerous.”
UPDATE: I originally used “off-campus speech” simply as shorthand for speech that is neither on-campus nor on the premises of any school activity (some of which may be off the school’s property as such, as in Morse); I’ve added a parenthetical to make that explicit.