The Oklahoma Bar Journal September 2022

E ducation

Oh Snap!: Tinkering With Student Speech Restrictions in Mahanoy v. B.L. By Hayley Jones O N JUNE 23, 2021, the United States Supreme Court released its decision in Mahanoy Area School District v. B.L. , 1 the first student speech case decided by the court in almost 15 years. At issue was whether the Mahanoy School District had violated the First Amendment rights of a student by suspending her from the cheerleading squad after she posted a profanity-laden message to her Snapchat account expressing her displeasure at not making the varsity cheerleading team. 2 A disgruntled student venting on social media is a near-daily occurrence faced by our country’s public schools, so some may wonder why the court chose to take up Mahanoy when it has declined to review numerous other student speech cases in recent years.

watched with keen interest as the court in Mahanoy addressed the following question: To what extent do public school officials have the authority to regulate student speech that occurs off campus? THE TINKER STANDARD Fifty years ago, the Supreme Court recognized in Tinker v. Des Moines Independent Community School District that students “do not shed their constitutional right to freedom of speech or expres sion at the schoolhouse gate.” 5 The court held the school district’s punishment of three students for wearing black armbands in opposition of the Vietnam War was an unconstitutional restric tion on speech. 6 Though Tinker clarified that students retain sig nificant First Amendment rights

while in school, those rights are not absolute, and the court went on to lay out the framework for analyz ing student speech that still applies today. Justice Fortas, writing for the majority, stated, “Conduct by the student, in class or out of it, which for any reason …materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” 7 In weighing a student’s constitu tional right to free speech against the school district’s need to main tain the educational environment, the burden falls on the school district to demonstrate disruption, disorder or invasion of others’ rights. In the case of Mary Beth Tinker and her peers, the school district could not specifically

The Supreme Court decided four student speech cases between 1969 and 2007, 3 determining that public school students retain their First Amendment rights at school, though permitting some regulation by school officials in recognition of the special circum stances of the school environment. However, none of those cases contemplated student speech that occurs online. Absent guidance from the high court regarding the application of current student speech jurisprudence to the inter net age, lower courts have split on the issue, 4 leaving school offi cials unsure of their authority to intervene in instances of troubling student speech that originates off campus but impacts the school environment. Thus, education law practitioners across the country

22 | SEPTEMBER 2022

THE OKLAHOMA BAR JOURNAL