Resetting the Boundaries on School Discipline

On June 23, 2021 the US Supreme Court issued Mahanoy Area School District v. BL. This case, like many of the big cases in recent years, spruced up decades-old Supreme Court jurisprudence to remind lower courts and lawyers—we meant what we said. Like Arizona v. Gant (which undid much of the law on search incident to arrest), US v. Jones (which restored the idea of trespass to property as a violation of a person’s constitional rights), and most importantly Crawford v. Washington (which pushed back on hearsay rules in favor of an individual’s constitutional right of confrontation), Mahanoy Area School District reinforces an older case, Tinker v. Des Moines Independent Community School District, which held that schools could not constitutionally prohibit “pure seech.”

Over time, however, Tinker’s holding was undercut by lower court rulings that allowed exceptions to swallow the Tinker rule. Courts held that school limitations on speech “…that materially disrupted classwork or involves substantial disorder or invasion of the rights of other…” were permissible, taking what was clearly dicta in Tinker and propitgated common law from it as if it were the holding. Mahanoy reset the clock, making clear which parts of Tinker matter most.

Facts

BL tried out for the cheerleading team. She did not make varisty. Instead she made the junior varisty team and was told it was because younger students needed more seasoning before joining the varisty team. She later found out that a student younger than she was made the varisty team and became upset. In a burst of anger, while at a local convenient store after school hours, she sent out a message over Snapchat that said: “Fuck school fuck softball fuck cheer fuck everything.” As messages on social media are apt to do, this post spread among her fellow students and ultimately got back to school administrators. In the cheerleading coach’s algebra class, the students talked about the message for a few minutes. Eventually the school barred BL from the cheerleading team for an entire year.

Feeling the punishment was too punitive, she and her family sued the school district under 42 USC 1983. The federal district court issued an injuction barring the school from implementing its discipline. The school appealed. The Third Circuit upheld the injuction. Finally, with Justice Breyer writing the main opinion (and with only one curmudgeonly dissent from Justice Thomas), the US Supreme Court upheld the injunction.

Law

Justice Breyer stated up front that this is narrow opinion. The Court, in both the main opinion and in the concurring opinions, explicitly stated that it wanted to avoid creating brightline rules about when schools can regulate off-campus speech. Instead, focusing on the facts of this case, the Court held that the school’s behavior violated Tinker. Breyer noted that there was little to no evidence of substantial disruption of school activity. When asked in the lower court, the cheerleading coach/algebra teacher made it clear that after a minutes of quesitoning the students moved on. Breyer also swifted rejected the school’s putative claim that the message impacted morale. He noted that there was no evidence of impacted morale that it was basically just adminstrators speculating that the comments impacted morale. Without more evidence, Tinker applies, and the off-campus speech is beyond the ambit of the school’s authority to regulate. As such, the injunction barring the school’s discipline stood.

Breyer then went on to give lawyers some guideposts for school discipline cases involving off campus speech. He emphasized again that he isn’t crafting brightline rules but just laying out things to consider in future cases.

First, he noted that the school’s authority to impose discipline stems from the common law notion of in loco parentis and that the force of this legal concept wanes significantly with off campus speech. He wrote: “…[g]eographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility…”

Second, Breyer noted the problem with the school’s logic—namely that if it can regulate both on-campus and off-campus speech then “…all the speech a student utters during the full 24-hour day…” could be regulated by schools. This means, in effect, that “…student[s] cannot engage in that kind of speech at all.” Thus, Breyer noted that schools “will have a heavy burden to justify intervention” in off campus speech.

Finally, Breyer noted that “public schools are the nurseries of democracy” and that schools have a special obligation to protect certain kinds of speech, specifically unpopular opinions expressed off-campus.

Impacts

In terms of school discipline cases, Mahanoy edges us ever closer to the idea that school discipline procedures need more formalized structures. In Haidak v. University of Massachusetts-Amherst, the 1st Circuit established some baseline due process protections for students in Title IX proceedings. Mahanoy similarly provides some real boundaries to what schools can police. School discipline is still one of two gross outliers in terms of lack of due process in goverment proceedings (the other being immigration proceedings), but these two cases seem to give people litigating school discipline more tools to work with to aid their clients.

In terms of criminal impacts, Mahanoy could be even more important. Often juvenile cases start at school and school exceptions to both the First Amendment and the Fifth Amendment result in strikingly odd criminal cases. Police, in the form of School Resource Officers, can rummage through kids’ stuff almost at will and the conspiratorial behavior between school administrators and the police is common. By making clear that off-campus activity, especially speech, is probably not school business, Mahanoy could be used to raise suppression issues that were impossible to bring before. If the police, via the schools, no longer have the ability to search student property in an effort to regulate off-campus activity, then the normal rights of privacy apply and suppression issues can be raised.

Mahanoy’s applicability is broad even if its holding is narrow. It is also a strong pushback on the intrusion of the police state and authoritarian school administration in our public schools.

If you have a school discipline issue or a juvenile criminal case, please contact us. We may be able to help.