Constitutional Law

On Free Speech, The Biden Administration Already Disappoints

The Department of Justice has argued high school officials should have the power to monitor and punish off-campus student speech. 

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Fifty-two years ago, the Supreme Court stated it could “hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This might sound all well and good but as everyone who has gone to high school knows, students are regularly punished for their speech. That’s because current law allows students to be disciplined for “disruptive” speech at school or at an off-campus school event. But a clear distinction has also been made in the law between on- and off-campus speech, with off-campus speech being considered protected by the First Amendment. However, a case this term, B.L. v. Mahanoy Area School District, threatens to remove this legal distinction and allow school officials to punish student speech that occurs entirely off campus.

Here are the facts of the Mahanoy case: A 14-year-old high school freshman at a public high school failed to make the varsity cheerleading team. Out of anger, the student posted a picture on Snapchat (on her own phone while at a local convenience store off school grounds), with her middle fingers raised, and captioned “Fuck School fuck softball fuck cheer fuck everything.” When the coaches of the cheerleading team became aware of the picture, they kicked the student off the junior varsity team. The reason given for the removal was that the student’s Snapchat picture had violated agreed-upon team rules prohibiting students from, among other things, using “foul language and inappropriate gestures.” In response to the removal, the parents of the student sued the school arguing the First Amendment’s guarantee of free speech prevented school officials from punishing speech that occurred off campus. The District Court granted summary judgment in favor of the student and the U.S. Court of Appeals for the 3rd Circuit also sided with the student after an appeal by the school.

In an amicus brief, the Biden administration has weighed in on the case after the Supreme Court granted cert. While taking no position on whether the student’s speech should be regulated, the Department of Justice (DOJ) argued the Third Circuit “incorrectly held that off-campus student speech is categorically immune from discipline by public-school officials.” In other words, the DOJ has taken the position that the distinction between off-campus and on-campus speech should be abolished.

The DOJ’s position is disturbing and dangerous. As the American Civil Liberties Union (who represents the student in Mahanoy) has pointed out, giving government officials the power to police student speech outside of school will be catastrophic to free speech rights:

“Students won’t be able to discuss their views on racism, national policy, or religion even outside of school. And, as with most government authority, it’s not hard to imagine how that power will be applied in discriminatory ways. In fact, we’ve already seen schools misuse their power in troubling ways to punish young Black people for what they say outside of school, including for posting a photo of a memorial commemorating a girl’s deceased father, a photo of a boy “holding too much money,” rap music videos, and posts calling out racist slurs used by their white classmates.

Because we live in a world where many folks like nothing better than portraying “kids these days” as wild and out of control (despite the evidence), I expect many might read the facts of the Mahanoy case and think the student got what she deserved. But even if you are one of these folks it should not be disputed that punishment for off-campus speech is better left in the hands of parents or guardians, not government officials. Unfortunately, the DOJ does dispute it. And the case is now in the hands of a superconservative majority Supreme Court that has already demonstrated a willingness to drastically restructure First Amendment doctrine not based on the law, but out of personal preference. At this rate, the high school student could end up being one of the least objectionable actors in this entire case.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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