Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy
Supreme Court briefMar 1, 2021
Ask Donna
What actually matters in this document.
Text
No. 20-255
In the Supreme Court of the United States
MAHANOY AREA SCHOOL DISTRICT, PETITIONER
v.
B. L., A MINOR, BY AND THROUGH
HER FATHER, LAWRENCE LEVY AND
HER MOTHER, BETTY LOU LEVY
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
MICHAEL S. RAAB
AMANDA L. MUNDELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the First Amendment categorically prohibits public-school officials from disciplining students for
speech that occurs off campus.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 6
Argument:
A. The First Amendment does not categorically
prohibit public-school officials from disciplining
students for speech that occurs off campus .................... 8
B. Off-campus student speech that threatens the
school community or intentionally targets certain
individuals, groups, or discrete school functions
may qualify as school speech potentially subject to
discipline by school officials............................................ 19
C. This Court should vacate the judgment below ............. 31
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES
Cases:
Agency for International Development v.
Alliance for Open Society International, Inc.,
570 U.S. 205 (2013)........................................................ 27, 30
Ambach v. Norwick, 441 U.S. 68 (1979) ................................ 9
Bell v. Itawamba County School Board,
799 F.3d 379 (5th Cir. 2015), cert. denied,
136 S. Ct. 1166 (2016) ......................................................... 22
Bethel School District No. 403 v. Fraser,
478 U.S. 675 (1986)............................................ 4, 6, 9, 10, 12
Board of Education of Independent School District
No. 92 v. Earls, 536 U.S. 822 (2002) .................................... 9
Boim v. Fulton County School District,
494 F.3d 978 (11th Cir. 2007) ............................................. 16
Brown v. Board of Education, 347 U.S. 483 (1954) ............. 9
Connick v. Myers, 461 U.S. 138 (1983) ................................ 20
(III)
IV
Cases—Continued:
Page
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 31
Davis v. Monroe County Board of Education,
526 U.S. 629 (1999).............................................................. 17
Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) ..... 25, 26, 31
Estate of Lance v. Lewisville Independent School
District, 743 F.3d 982 (5th Cir. 2014) ............................... 17
Feminist Majority Foundation v. Hurley, 911 F.3d
674 (4th Cir. 2018) ............................................................... 18
Garrison v. Louisiana, 379 U.S. 64 (1964) ......................... 20
Goss v. Lopez, 419 U.S. 565 (1975) ...................................... 10
Grayned v. City of Rockford, 408 U.S. 104 (1972) ........ 13, 14
Green v. County School Board, 391 U.S. 430 (1968) .......... 28
Hazelwood School District v. Kuhlmeier,
484 U.S. 260 (1988).............................................. 9, 10, 11, 12
Kowalski v. Berkeley County Schools,
652 F.3d 565 (4th Cir. 2011), cert. denied,
565 U.S. 1173 (2012)................................................ 14, 18, 23
Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007),
cert. denied, 555 U.S. 825 (2008) ..................... 26, 27, 30, 31
McNeil v. Sherwood School District 88J,
918 F.3d 700 (9th Cir. 2019) ......................................... 15, 22
Morse v. Frederick, 551 U.S. 393 (2007) .................... passim
New Jersey v. T. L. O., 469 U.S. 325 (1985) .......................... 9
Pinard v. Clatskanie School District 6J,
467 F.3d 755 (9th Cir. 2006) ............................................... 29
S.J.W. v. Lee’s Summit R-7 School District,
696 F.3d 771 (8th Cir. 2012) ............................................... 23
Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000).............. 28
Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969)......................... passim
Vernonia School District 47J v. Acton,
515 U.S. 646 (1995)........................................................ 10, 30
V
Cases—Continued:
Page
Wisniewski v. Board of Education, 494 F.3d 34
(2d Cir. 2007), cert. denied, 552 U.S. 1296 (2008) ............ 15
Wynar v. Douglas County School District,
728 F.3d 1062 (9th Cir. 2013) ....................................... 15, 16
Zeno v. Pine Plains Central School District,
702 F.3d 655 (2d Cir. 2012) ................................................ 17
Constitution and statutes:
U.S. Const.:
Amend. I .................................................................. passim
Amend. XIV ....................................................................... 3
Americans with Disabilities Act of 1990,
Pub. L. No. 101-336, Tit. II, 104 Stat. 337 ........................ 16
Civil Rights Act of 1964, Pub. L. No. 88-352,
78 Stat. 241:
Tit. IV, 78 Stat. 246................................................................ 16
Tit. VI, 78 Stat. 252.................................................... 16, 17, 28
Education Amendments of 1972, Tit. IX,
Pub. L. No. 92-318, 86 Stat. 373 .................................. 16, 28
Individuals with Disabilities Education Act,
Pub. L. No. 108-446, 118 Stat. 2647 .................................. 17
Rehabilitation Act of 1973, Pub. L. No. 93-112,
87 Stat. 355 (29 U.S.C. 701 et seq.):
§ 504, 87 Stat. 394 ............................................................ 16, 17
29 U.S.C. 794(b) (§ 504(b)) .................................................... 28
20 U.S.C. 1687 ........................................................................ 28
42 U.S.C. 1983 ...................................................................... 2, 3
42 U.S.C. 2000d-4a................................................................. 28
VI
Miscellaneous:
Page
Albert V. Carron et al., Cohesion and Performance
in Sport: A Meta Analysis, 24 J. Sport & Exercise
Psych. 168 (2002)................................................................. 27
Kurt T. Dirks, Trust in Leadership and Team
Performance: Evidence from NCAA Basketball,
85 J. Applied Psych. 1004 (2000) ....................................... 27
Kristen L. Kucera & Robert C. Cantu, National
Center for Catastrophic Sport Injury Research,
Thirty-Seventh Annual Report (Sept. 27, 2020),
nccsir.unc.edu/reports ........................................................ 27
Letter from Catherine E. Lhamon, Assistant Secretary Office for Civil Rights, United States Department of Education, to Colleague (Oct. 21, 2014),
www2.ed.gov/about/offices/list/ocr/letters/
colleague-bullying-201410.pdf ........................................... 17
Letter from Melody Musgrove, Director, Office of
Special Education Programs & Michael K. Yudin,
Acting Assistant Secretary, Office of Special Education & Rehabilitative Services, United States
Department of Education, to Colleague (Aug. 20,
2013), sites.ed.gov/idea/files/idea/policy/speced/
guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf............... 17
Russell J. Skiba et al., Race Is Not Neutral: A
National Investigation of African American and
Latino Disproportionality in School Discipline,
40 School Psych. Rev. 85 (2011) ........................................ 21
Russell J. Skiba et al., The Color of Discipline:
Sources of Racial and Gender Disproportionality
in School Punishment, 34 The Urban Rev. 317
(2002) .................................................................................... 21
U.S. Gov’t Accountability Office, GAO-18-258,
K-12 Education: Discipline Disparities
for Black Students, Boys, and Students with Disabilities (Mar. 2018), gao.gov/assets/700/690828.pdf ........ 21
In the Supreme Court of the United States
No. 20-255
MAHANOY AREA SCHOOL DISTRICT, PETITIONER
v.
B. L. , A MINOR, BY AND THROUGH
HER FATHER, LAWRENCE LEVY AND
HER MOTHER, BETTY LOU LEVY
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case concerns the authority of public schools to
discipline students for speech that occurs off campus.
The federal government operates hundreds of primary
and secondary schools on military installations and Indian reservations. And several federal governmental
entities, including components within the Departments
of Education, Justice, and Health and Human Services,
devote significant resources to addressing, preventing,
and enforcing prohibitions on bullying and harassment
of students. The United States thus has a substantial
interest in the outcome of this case. The government
also has a substantial interest in the correct interpretation and application of the federal Constitution.
(1)
2
STATEMENT
Respondent, a high-school student, was removed
from the cheerleading team because of two messages
she had posted on social media. Respondent sued the
school district, petitioner here, under 42 U.S.C. 1983,
alleging that the removal violated her constitutional
freedom of speech. The district court granted summary
judgment to respondent. Pet. App. 49a-76a, 77a-79a.
The court of appeals affirmed. Id. at 1a-48a.
1. a. As a sophomore, respondent was placed on her
high school’s junior-varsity cheerleading team for a second straight season, even as a freshman made the varsity team. Pet. App. 4a-5a. Frustrated, respondent
posted two messages to her personal account on Snapchat, a social media application. Id. at 5a. The first said
“Fuck school fuck softball fuck cheer fuck everything,”
and it was accompanied by a photo of her and a friend
raising their middle fingers. J.A. 20; see Pet. App. 5a.
The second said “Love how me and [another student]
get told we need a year of jv before we make varsity but
that’s doesn’t matter to anyone else? 🙃.” J.A. 21; see
Pet. App. 5a. Approximately 250 people, including fellow students and cheerleaders, had permission to view
the posts. Pet. App. 5a.
Several of those students, some of them “visibly upset,” showed copies of the messages to the cheerleading
coaches, who determined that the messages violated
team and school rules. Pet. App. 52a (citation omitted);
see id. at 5a-6a. Specifically, the cheerleading rules required team members to “have respect for [the] school,
coaches, teachers, other cheerleaders and teams,” prohibited “foul language and inappropriate gestures,” and
forbade the posting of “any negative information regarding cheerleading, cheerleaders, or coaches placed
3
on the internet.” J.A. 17-18; see Pet. App. 6a. Respondent had signed a document acknowledging that she
would be bound by those rules. See Pet. App. 51a.
School rules also stated that student athletes, including
cheerleaders, must “conduct[] themselves in such a way
that the image of the Mahanoy School District would
not be tarnished in any manner.” C.A. App. 486; see
Pet. App. 6a. Having determined that respondent’s
posts violated those team and school rules, the coaches
suspended respondent from the cheerleading team for
the year. Pet. App. 6a. The coaches “would not have
suspended” respondent “if her [messages] had not referenced cheerleading.” Id. at 52a (citation omitted).
Respondent brought this suit under 42 U.S.C. 1983,
alleging as relevant here that her suspension violated
the First Amendment, made applicable to the States by
the Fourteenth Amendment. See Pet. App. 6a. The district court granted a temporary restraining order and
then a preliminary injunction reinstating respondent to
the cheerleading team. See id. at 53a.
b. Following discovery, the district court granted
summary judgment to respondent. Pet. App. 49a-76a.
The district court first determined that petitioner
“ha[d] not produced sufficient evidence that [respondent had] waived her speech rights” as a condition of
joining the cheerleading team. Pet. App. 60a. The court
explained that “conditioning extracurricular participation on a waiver of a constitutional right is coercive.” Id.
at 61a. The court also rejected the suggestion that
“mere exclusion from an extracurricular activity reduces or fails to raise constitutional concerns.” Id. at
66a. Instead, the court reasoned that “the fact that this
case involves cheerleading is only appropriately considered in determining whether [respondent’s] speech was
4
protected,” id. at 67a, and that “players do not completely waive their rights when they join a team,” id. at
68a (citation omitted).
The district court next reviewed this Court’s precedents concerning student speech, including Tinker v.
Des Moines Independent Community School District,
393 U.S. 503 (1969), in which this Court held that students had a First Amendment right to wear black armbands at school to signify their opposition to the Vietnam War. Id. at 513. The district court stated that
Tinker “sets the baseline for what student speech is
protected: anything that does not, or in the view of reasonable school officials, will not cause material and substantial disruption at school.” Pet. App. 55a. The court
also stated that subsequent cases had set forth “exceptions to this broad dictate.” Ibid. As relevant here, the
court said that under Bethel School District No. 403 v.
Fraser, 478 U.S. 675 (1986), “a school may categorically
prohibit lewd, vulgar, or profane language.” Pet. App.
57a-58a (citation omitted).
The district court determined, however, that neither
of those cases supported petitioner here. In the court’s
view, “that [respondent’s] speech occurred off-campus
[wa]s all but fatal” to petitioner’s reliance on Fraser,
Pet. App. 68a, which the Third Circuit had previously
held “cannot be extended to justify a school’s punishment for use of profane language outside the school,
during non-school hours,” ibid. (citation and ellipsis
omitted). And though the court acknowledged that
“whether Tinker applies to speech uttered beyond the
schoolhouse gate is an open question,” id. at 75a, it
found that petitioner had “not shown that [respondent’s] speech created any substantial disorder or likelihood thereof,” id. at 73a.
5
2. The court of appeals affirmed. Pet. App. 1a-48a.
a. The court of appeals observed that respondent’s
messages “took place ‘off campus’ ” because she created
them “away from campus, over the weekend, and without school resources, and she shared [them] on a social
media platform unaffiliated with the school.” Pet. App.
15a. The court further explained that under its prior
precedent, “Fraser does not apply to off-campus speech.”
Id. at 16a. The court stated that it would “undermin[e]
the values” its prior precedent “sought to protect” to
make an exception when, as here, the speech or punishment involves an extracurricular activity.
The court of appeals then held that Tinker categorically does not apply to off-campus student speech, Pet.
App. 31a, and that the First Amendment prohibits public schools from disciplining students for their speech
unless “the speech occurs in a context owned, controlled, or sponsored by the school,” id. at 33a. The
court stated that “Tinker’s focus on disruption makes
sense when a student stands in the school context, amid
the ‘captive audience’ of his peers,” but “makes little
sense where the student stands outside that context”
because “any effect on the school environment will depend on others’ choices and reactions.” Id. at 32a (citation omitted). The court explained that its categorical
rule “offers the distinct advantage of offering up-front
clarity to students and school officials.” Id. at 33a. The
court stated, however, that its otherwise categorical
rule might contain an exception for “off-campus student
speech threatening violence or harassing particular students or teachers.” Id. at 34a.
The court of appeals also determined that respondent did not “waive her First Amendment rights as a condition of joining the team,” Pet. App. 38a, because her
6
social-media posts were “not covered by any of the
[team and school] rules on which [petitioner] relies,” id.
at 41a. The court acknowledged, however, that “[a]ll
rights, including free speech rights, can be waived,” and
that “there are a wide range of extracurricular activities
and student roles that may make conditions on speech
more or less connected to the needs of the program” and
thus permissible under the First Amendment. Id. at
38a-39a.
b. Judge Ambro concurred in the judgment. Pet.
App. 42a-48a. In his view, the district court correctly
found that respondent’s messages had caused “no ‘substantial disruptions,’ ” id. at 45a, and so he would have
affirmed the judgment under Tinker’s “substantial disruption” test, see id. at 45a n.1, 48a (citation omitted).
SUMMARY OF ARGUMENT
A. The First Amendment does not categorically prohibit public schools from disciplining students for
speech that occurs off campus. Although this Court has
made clear in the context of on-campus speech that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”
Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 506 (1969), “the constitutional
rights of students in public school are not automatically
coextensive with the rights of adults in other settings,”
Bethel School District No. 403 v. Fraser, 478 U.S. 675,
682 (1986). This Court has held, for example, that
schools may prohibit vulgar speech and speech that encourages illegal drug use, and may control speech that
appears in school-sponsored publications. And Tinker
suggests that schools also may discipline students for
speech that materially and substantially disrupts school
activities. 393 U.S. at 513.
7
The principles of the Court’s “school speech” cases
are not categorically inapplicable to student speech uttered off campus and outside of school hours. This
Court’s school-speech cases have focused on the consequence of students’ speech on other students and school
activities, not the precise time or location at which the
speech occurs. The court of appeals’ ruling that school
officials are categorically prohibited from disciplining
students for their off-campus speech thus has no basis
in this Court’s precedents, and would lead to arbitrary
results. That categorical rule also could substantially
undermine efforts by schools to address harassment
and bullying, much of which might take place off campus but which nevertheless could deprive victims of
equal educational opportunities.
B. The question remains which off-campus student
speech may be treated as “school speech” potentially
subject to discipline by public-school officials. In general, the broad range of speech engaged in by students
when off campus is beyond the proper purview of school
officials. And there is good reason to be wary of any
rule that would permit an overbroad opportunity for the
discipline of such speech. Lower courts accordingly
have attempted to craft various rules to establish the
requisite connection between off-campus speech and
school. No universal formulation is possible, but specific categories of off-campus student speech that may
properly be regarded as school speech include speech
that (1) threatens the school community, (2) intentionally targets specific individuals or groups in the school
community, or (3) intentionally targets specific school
functions or programs regarding matters essential to or
inherent in the functions or programs themselves.
8
In the particular context of an extracurricular athletic program, for example, maintaining team cohesion
and respect for the coach’s authority are essential to
and inherent in the proper functioning of a team. Accordingly, students who choose to join such teams reasonably should expect that if they engage in off-campus
speech that intentionally targets their teammates or
teams regarding matters essential to or inherent in the
program, their speech might properly be considered
school speech that coaches and team administrators
could potentially discipline.
To be clear, the question of which off-campus student
speech may be treated as school speech is a different
question from whether any particular regulation of such
speech would violate the First Amendment. To answer
that latter question, courts generally apply this Court’s
school-speech precedents, including Tinker. In this
case, more specific principles distilled from those precedents can appropriately be identified for application to
extracurricular programs.
C. Because the court of appeals incorrectly held that
school officials are categorically prohibited from disciplining students for their off-campus speech, it did not
apply any of the principles set forth here. Accordingly,
this Court should vacate the judgment below and remand so the lower courts can undertake that analysis in
the first instance.
ARGUMENT
A. The First Amendment Does Not Categorically Prohibit
Public-School Officials From Disciplining Students For
Speech That Occurs Off Campus
1. This Court has made clear in the context of oncampus speech that although students do not “shed
9
their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines
Independent Community School District, 393 U.S. 503,
506 (1969), “the constitutional rights of students in public school are not automatically coextensive with the
rights of adults in other settings,” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986); accord
Morse v. Frederick, 551 U.S. 393, 404-405 (2007); Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266
(1988). Instead, the First Amendment “must be ‘applied in light of the special characteristics of the school
environment.’ ” Kuhlmeier, 484 U.S. at 266 (quoting
Tinker, 393 U.S. at 506).
Among those special characteristics is “[t]he importance of public schools in the preparation of individuals for participation as citizens, and in the preservation
of the values on which our society rests.” Ambach v.
Norwick, 441 U.S. 68, 76 (1979); see Brown v. Board of
Education, 347 U.S. 483, 493 (1954). Because the task
of educating the Nation’s children vests public schools
with responsibility to teach students, a school may prohibit student speech that “would undermine the school’s
basic educational mission.” Fraser, 478 U.S. at 685; see
Kuhlmeier, 484 U.S. at 266 (“A school need not tolerate
student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not
censor similar speech outside the school.”) (quoting
Fraser, 478 U.S. at 685).
For that reason, a number of constitutional rights
apply differently in the school setting. See, e.g., New
Jersey v. T. L. O., 469 U.S. 325, 340 (1985) (“It is evident
that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”); Board of Education of Independent
10
School District No. 92 v. Earls, 536 U.S. 822, 830-831
(2002) (same); Vernonia School District 47J v. Acton,
515 U.S. 646, 651 (1995) (same); Goss v. Lopez, 419 U.S.
565, 584 (1975) (disciplinary suspension ordinarily requires only “rudimentary procedures”). The First
Amendment is no exception.
In Fraser, for example, the Court held that the First
Amendment did not preclude a school from punishing a
student for making a sexually suggestive speech at a
school assembly. 478 U.S. at 679-680. The Court explained that “[t]he First Amendment does not prevent
the school officials from determining that to permit a
vulgar and lewd speech * * * would undermine the
school’s basic educational mission.” Id. at 685. Thus,
“it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar
speech and lewd conduct is wholly inconsistent with the
‘fundamental values’ of public school education.” Id. at
685-686.
In Kuhlmeier, this Court held that a school has substantial latitude in regulating student speech when it is
sponsored by the school, such as in a school-published
newspaper. 484 U.S. at 273. The Court explained that
in light of public-school officials’ traditional responsibility for overseeing “the education of our Nation’s youth,”
the officials may “exercis[e] editorial control over the
style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Ibid.
Only when such restrictions “ha[ve] no valid educational
purpose [would] the First Amendment [be] so ‘directly
and sharply implicated’ as to require judicial intervention to protect students’ constitutional rights.” Ibid.
(brackets and citations omitted).
11
And in Morse, this Court upheld against a First
Amendment challenge the suspension of a student who
unfurled a banner reading “ BONG HiTS 4 JESUS” across
the street from the school “during school hours, at a
school-sanctioned activity.” 551 U.S. at 397, 401 (citations omitted). The Court explained that “deterring
drug use by schoolchildren is an ‘important—indeed,
perhaps compelling’ interest.” Id. at 407 (citation omitted). Accordingly, the Court held “that schools may
take steps to safeguard those entrusted to their care
from speech that can reasonably be regarded as encouraging illegal drug use.” Id. at 397.
As those cases demonstrate, public schools may discipline students for speech that otherwise would enjoy
First Amendment protection if uttered by adults outside the school context. See Kuhlmeier, 484 U.S. at 266.
There are, of course, limits on schools’ ability to discipline students for such speech. In Tinker, for example,
this Court held that a school could not prohibit students
from wearing armbands in school to protest the Vietnam War. 393 U.S. at 504. After observing that the
school had prohibited the armbands “to avoid the controversy which might result from the expression” (out
of a belief that “ ‘the schools are no place for demonstrations’ ”), this Court explained that “to justify prohibition
of a particular expression of opinion, [a school] must be
able to show that its action was caused by something
more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint.” Id. at 509 & n.3, 510.
It was in that context—where the asserted governmental interest was merely to prevent controversy—
that the Court stated that a student “may express his
opinions, even on controversial subjects like the conflict
12
in Vietnam, if he does so without ‘materially and substantially interfering with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.” Tinker, 393 U.S.
at 513 (brackets and citation omitted). Significantly, the
Tinker Court made clear that schools may discipline
student speech for reasons other than avoiding
controversy—including if the speech would “materially
and substantially disrupt the work and discipline of the
school.” Ibid.; see id. at 509. And as discussed above,
the Court’s subsequent decisions in Fraser, Kuhlmeier,
and Morse establish that other such legitimate reasons
include shielding students from profanity, controlling
the message conveyed in school-sponsored speech, and
deterring illegal drug use, respectively. Unlike the prohibition of armbands in Tinker, those restrictions “extend[] well beyond an abstract desire to avoid controversy.” Morse, 551 U.S. at 409. They instead are
geared toward furthering “the ‘fundamental values’ of
public school education,” Fraser, 478 U.S. at 685-686,
enforcing standards in school activities that “are reasonably related to legitimate pedagogical concerns,”
Kuhlmeier, 484 U.S. at 273, and preventing danger to
the health and wellbeing of students, Morse, 551 U.S. at
407-408.
2. Contrary to the court of appeals’ holding, those
principles are not categorically inapplicable to offcampus student speech. To be sure, as this Court recognized in Morse, “[t]here is some uncertainty at the
outer boundaries as to when courts should apply school
speech precedents.” 551 U.S. at 401. But the court of
appeals erred in converting that uncertainty into a categorical rule that student speech occurring off campus
13
does not qualify as “school speech” potentially subject
to discipline by public-school officials.
a. This Court’s precedents do not support the lower
court’s categorical rule. Nothing in Tinker, for example, suggests that school officials are powerless to discipline students for materially and substantially disruptive speech if they happen to utter it on their way to
school, a moment before they set foot on school grounds.
Tinker made clear that its concern was with the prospect of disruptive consequences of speech on the school
environment. The “schoolhouse gate” to which the opinion refers was intended to be metaphorical, not literal;
after all, nobody would contest that schools may discipline students for substantially disruptive speech at a
school-sponsored event that happens to take place off
school property. See Br. in Opp. 10 (stating that schools
may discipline student speech “at a school-sponsored
event”); cf. Morse, 551 U.S. at 401-402 (upholding discipline for displaying a banner across the street from the
school). Tinker itself stated that “conduct by the student, in class or out of it, which for any reason—
whether it stems from time, place, or type of behavior—
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.” 393 U.S. at 513 (emphasis added). That
rationale can apply as well to certain off-campus conduct or speech by the student that would have a substantial and material disruptive or invasive effect.
This Court effectively held as much in Grayned v.
City of Rockford, 408 U.S. 104 (1972), which involved a
criminal ordinance prohibiting noisy picketing within
150 feet of school property. See id. at 107. The Court
14
found the ordinance constitutional because such picketing could “disrupt or [be] incompatible with normal
school activities.” Id. at 120. The defendant in Grayned
did not even attend the school. See id. at 105. If a State
may criminally punish a nonstudent for off-campus
speech based on its disruptive effect on school activities,
a fortiori the school itself must be able to discipline its
own students for engaging in off-campus speech if it
would have a similarly disruptive effect.
Indeed, the principle that schools are not categorically prohibited from addressing speech by a student
who is located off campus is not limited to disruptive
speech under Tinker. For example, Kuhlmeier presumably would permit a school to exercise editorial control over student postings on a website sponsored by the
school, even if the student generated that speech outside of school and uploaded it to web servers located entirely off campus. Accordingly, the court of appeals’ focus on the question whether Tinker applies to speech by
students who are not on campus, see, e.g., Pet. App. 31a,
was incomplete. The appropriate question is whether
and under what circumstances off-campus student
speech may, consistent with the First Amendment, be
treated as “school speech” and therefore potentially
subject to discipline by public-school officials. Cf. Kowalski v. Berkeley County Schools, 652 F.3d 565, 573 (4th
Cir. 2011), cert. denied, 565 U.S. 1173 (2012). Whether
a school may discipline a student for school speech
(whether occurring off campus or on) is a separate question requiring application of this Court’s school-speech
precedents (including of course Tinker). Cf. Morse, 551
U.S. at 400-401 (bifurcating the inquiry in a similar
fashion).
15
The court of appeals was mistaken to defend its categorical rule as “offering up-front clarity to students
and school officials.” Pet. App. 33a. For one thing, the
categorical rule would mean that schools’ ability to discipline students because of the substantial adverse effect of their speech on other individuals in the school or
the school’s operation would turn on arbitrary distinctions, such as whether the student drafted the particular message using a school-owned computer or her own,
or whether she posted it a minute before the school bell
rang or a minute after. For another, the current pandemic has underscored that the line between “on” and
“off ” campus is increasingly blurry. As Judge Ambro
observed, the court of appeals’ holding likely “will sow
further confusion,” id. at 48a, rather than “draw a clear
and administrable line,” id. at 45a.
b. Moreover, the court of appeals’ categorical holding could undermine schools’ efforts to respond to
threats to the safety of students and staff. When school
administrators are alerted to messages by a student
that, for instance, suggest plans for violence, they cannot be said to have violated the First Amendment when
they take reasonable steps to avert that potential harm.
See, e.g., McNeil v. Sherwood School District 88J, 918
F.3d 700, 703-704 (9th Cir. 2019) (per curiam) (upholding one-year expulsion of a student with “access to firearms” who created “a hit list of students” who “ ‘must
die’ ”); Wynar v. Douglas County School District, 728
F.3d 1062, 1070 (9th Cir. 2013) (upholding temporary
expulsion of a student “with confirmed access to weapons” who posted social-media “messages that could be
interpreted as a plan to attack the school” and that were
“brought to the school’s attention by fellow students”);
Wisniewski v. Board of Education, 494 F.3d 34, 36 (2d
16
Cir. 2007) (upholding suspension of student who circulated an instant-messenger icon depicting “a pistol firing a bullet at a person’s head, above which were dots
representing splattered blood,” and below which were
the words “ ‘Kill Mr. VanderMolen,’ ” an English teacher
at the school), cert. denied, 552 U.S. 1296 (2008).
As the Ninth Circuit has observed, school officials
who learn of such messages “face[] a dilemma every
school dreads”: do nothing and risk the safety of the
school community, or take action and risk a lawsuit.
Wynar, 728 F.3d at 1070; see Boim v. Fulton County
School District, 494 F.3d 978, 984 (11th Cir. 2007) (“We
can only imagine what would have happened if the
school officials, after learning of Rachel’s writing, did
nothing about it and the next day Rachel did in fact
come to school with a gun and shoot and kill her math
teacher.”). The court of appeals’ categorical rule here
could force schools into that dilemma whenever they
learn of off-campus student speech that contains similar
threats of violence or other threats to safety.
That categorical rule also could undermine schools’
efforts to combat harassment, bullying, and other similar harms. Several provisions of federal law—such as
Title IX of the Education Amendments of 1972, Pub. L.
No. 92-318, 86 Stat. 373; Titles IV and VI of the Civil
Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 246, 252;
Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), Pub. L. No. 93-112, 87 Stat. 394; and Title
II of the Americans with Disabilities Act of 1990, Pub.
L. No. 101-336, 104 Stat. 337—may require public
schools and schools receiving federal financial assistance to take action to address harassing speech in the
school context directed at students or school employees
on the basis of race, sex, disability, or other protected
17
characteristics, depending on the factual circumstances.
For example, school districts may under certain circumstances be held liable for damages if they are “deliberately indifferent to [student-on-student] sexual
harassment, of which they have actual knowledge, that
is so severe, pervasive, and objectively offensive that it
can be said to deprive the victims of access to the educational opportunities or benefits provided by the
school.” Davis v. Monroe County Board of Education,
526 U.S. 629, 650 (1999); see Estate of Lance v. Lewisville Independent School District, 743 F.3d 982, 995-996
(5th Cir. 2014) (applying Davis to disability harassment
claim under Section 504 of the Rehabilitation Act); Zeno
v. Pine Plains Central School District, 702 F.3d 655,
664-667 (2d Cir. 2012) (applying Davis to racial harassment under Title VI).
Similarly, the Department of Education has explained that harassment and bullying of a student with
a disability on any basis can rise to the level of denying
a free appropriate public education under the Individuals with Disabilities Education Act, Pub. L. No. 108-446,
118 Stat. 2647, and Section 504 of the Rehabilitation
Act. See Letter from Melody Musgrove, Director, Office of Special Education Programs, & Michael K.
Yudin, Acting Assistant Secretary, Office of Special Education & Rehabilitation Services, United States
Department of Education, to Colleague (Aug. 20, 2013),
sites.ed.gov/idea/files/idea/policy/speced/guid/idea/
memosdcltrs/bullyingdcl-8-20-13.pdf; Letter from Catherine E. Lhamon, Assistant Secretary, Office for Civil
Rights, United States Department of Education, to Colleague (Oct. 21, 2014), www2.ed.gov/about/offices/list/ocr/
letters/ colleague-bullying-201410.pdf.
18
Off-campus speech—including speech communicated via email, text message, social media, and the
like—that is harassing or bullying can contribute to depriving victims of the educational opportunities to
which they are entitled. Under those circumstances,
schools officials attempting to satisfy their obligations
under federal law to address those harms should not be
placed in the difficult position of having to blind themselves to instances of the harassing or bullying conduct
that occurred online. Cf. Tinker, 393 U.S. at 513 (observing that student speech or conduct, “in class or out
of it,” that involves “invasion of the rights of others” is
“not immunized by the constitutional guarantee of freedom of speech”); Feminist Majority Foundation v.
Hurley, 911 F.3d 674, 688-689 (4th Cir. 2018) (“[W]e
cannot conclude that [the school] could turn a blind eye
to the sexual harassment that pervaded and disrupted
its campus solely because the offending conduct took
place through cyberspace.”).
Even aside from those statutory requirements,
schools have valid educational reasons to protect students from bullying and harassment by other students.
As the Fourth Circuit has observed, “student-onstudent bullying is a ‘major concern’ in schools across
the country and can cause victims to become depressed
and anxious, to be afraid to go to school, and to have
thoughts of suicide.” Kowalski, 652 F.3d at 572. “Just
as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment,” including by “punish[ing] harassment and
bullying in order to provide a safe school environment
conducive to learning.” Ibid. (citation omitted) (citing
19
Morse, supra). A categorical rule holding that schools
may not discipline a student for harassing or bullying
speech that deprives another student of educational opportunities simply because it occurs off campus—
including on email, text, or social-media platforms—
would hinder efforts to address that harmful behavior.
The court of appeals’ only response to those substantial concerns was to leave for another day the problem
of “off-campus student speech threatening violence or
harassing particular students or teachers,” Pet. App.
34a, suggesting that discipline of students for such
speech might be subject to the stricter First Amendment scrutiny applicable outside the school context, see
id. at 36a. But the court offered no principled basis for
why such speech having direct and substantial adverse
consequences for students or school personnel should
be immune from the discipline that would be called for
if the same speech had occurred on campus.
B. Off-Campus Student Speech That Threatens The School
Community Or Intentionally Targets Certain Individuals,
Groups, Or Discrete School Functions May Qualify As
School Speech Potentially Subject To Discipline By
School Officials
1. Although the First Amendment permits publicschool officials to discipline students for certain offcampus speech, the question remains which off-campus
student speech may be treated as “school speech” that
is potentially subject to discipline by public-school officials. Obviously there are broad ranges of off-campus
student speech that would not be a proper subject of
discipline by school officials. For example, as Morse observed, had the student in Fraser “delivered the same
speech in a public forum outside the school context, it
would have been protected.” 551 U.S. at 405. And if a
20
student delivers a fiery religious sermon or a controversial political speech over the weekend, it almost certainly would be protected under the First Amendment
no matter how disruptive its lingering effects might
prove to be when the student returns to school. Cf. id.
at 406 n.2; id. at 422 (Alito, J., concurring); Connick v.
Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First
Amendment values,’ and is entitled to special protection.”) (citation omitted); Garrison v. Louisiana, 379
U.S. 64, 74-75 (1964). More generally, the vast array of
day-to-day off-campus communication by students is
beyond the legitimate reach of school discipline—in
other words, should be regarded as protected without
even having to consider the application of Tinker or another of this Court’s school-speech cases to determine
whether the communication could properly be subject
to discipline.
Conversely, some narrow categories of student speech
that occurs off campus nevertheless are properly regarded as “school speech” potentially subject to discipline by school officials. One example is speech that can
create a threatening environment, or that can deprive
other students of educational opportunities to which
they are entitled, such as bullying and harassment. Another example is speech that would undermine the essential functioning of the educational curriculum (such
as posting the answers to an exam) or breach school security (such as instructions for hacking into the school’s
computer system).
This Court has not yet had the opportunity to address the circumstances under which off-campus student speech may be considered “school speech.” Cf.
Morse, 551 U.S. at 400-401. And there are reasons to be
21
wary of any rule that would grant school officials disciplinary authority over a broad range of off-campus student speech as school speech. Cf. id. at 423 (Alito, J.,
concurring). There may be a risk, for example, that
such authority could be exercised disproportionately
against students of color or other identified student
populations. Some studies have suggested, for instance,
that schools sometimes disproportionately discipline
black students for speech deemed to be disrespectful or
defiant. See, e.g., Russell J. Skiba et al., The Color of
Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 The Urban Rev.
317, 334-335 (2002) (study of discipline in a middle
school suggesting that “black students are more likely
to be referred to the office for more subjective reasons,”
including “disrespect”) (emphasis omitted); Russell J.
Skiba et al., Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline, 40 School Psych. Rev. 85, 101
(2011) (same). A recent GAO report on discipline disparities for black students, boys, and students with disabilities has made similar findings. See U.S. Gov’t Accountability Office, GAO-18-258, K-12 Education: Discipline Disparities for Black Students, Boys, and Students with Disabilities 12 (Mar. 2018), gao.gov/assets/
700/690828.pdf. Other limitations on school officials’ authority, such as due-process protections or viewpointneutrality requirements, may do little to curb such
abuses.
The government thus respectfully disagrees with petitioner that due-process principles or Tinker itself provides a sufficient “backstop” to preserve a large sphere
of off-campus student communication free from the potential for school discipline. Pet. Br. 4; see id. at 26-30.
22
Just as school officials need assurance that they can, for
example, react to threats to school safety without running afoul of the First Amendment, see p. 16, supra, so
too do students need assurance that they do not risk potential discipline for whatever they write or say off campus simply because they happen to be enrolled in the
school. There is, in short, no basis for treating the immense amount of off-campus speech by students as
school speech that would potentially be subject to discipline, even if it is about the school or might have some
effect on other students or the school environment.
Some lower courts have adopted multifactor totalityof-the-circumstances tests to determine when offcampus student speech qualifies as school speech. See,
e.g., McNeil, 918 F.3d at 707 (setting forth a “flexible
and fact-specific” test “based on the totality of the circumstances”); Bell v. Itawamba County School Board,
799 F.3d 379, 398 (5th Cir. 2015) (en banc) (setting forth
seven nonexclusive factors to determine whether offcampus student speech may be treated as school speech),
cert. denied, 136 S. Ct. 1166 (2016). The Ninth Circuit
in McNeil, for example, identified three nonexclusive
“relevant considerations”: “(1) the degree and likelihood of harm to the school caused or augured by the
speech, (2) whether it was reasonably foreseeable that
the speech would reach and impact the school, and
(3) the relation between the content and context of the
speech and the school.” 918 F.3d at 707 (citations omitted). One problem with such tests, however, is that they
tend to conflate the inquiries into whether off-campus
speech counts as “school speech” to begin with and
whether, if so, that speech may be subject to discipline
consistent with the First Amendment. For example,
McNeil’s consideration of the “harm to the school”
23
seems more appropriate to answering the question
whether discipline is warranted than the antecedent inquiry whether the speech counts as school speech in the
first place. Another problem with multifactor tests is
they generally leave both school officials and students
with little guidance about how the various factors might
apply or be weighted in particular circumstances.
Other lower courts have held that off-campus student speech may qualify as school speech if it is “targeted at [the school]” and “could reasonably be expected to reach the school.” S.J.W. v. Lee’s Summit R7 School District, 696 F.3d 771, 778 (8th Cir. 2012) (citation omitted); see Kowalski, 652 F.3d at 573; see also
Pet. Br. 13 (off-campus speech must be “directed at
campus”) (capitalization and emphasis omitted). If not
further cabined, however, that test has the potential to
be overbroad. Students spend much of their lives in
school, or at school activities, or doing schoolwork at
home; one might therefore naturally expect much of
their speech to “target” the school environment in some
fashion. Social-media messages griping about homework or exams undoubtedly are commonplace. And
when it comes to online activity—especially salient during the current pandemic—many of students’ contacts
and social-media “friends” are likely to be fellow students, so anything they post online reasonably could be
expected to “reach” the school.
2. As the discussion above illustrates, it is difficult
to formulate a single universal rule that captures the
discrete types of off-campus student speech that school
officials might properly regard as school speech that
can be disciplined when warranted—for example, to
protect students and school personnel from threats and
harassment, or to prevent substantial disruption of the
24
school’s functions and programs, or to protect other students’ rights from invasion, or to protect the school
from danger—without being overbroad. That said, the
“targeting” inquiry does capture a central element of
workable standards that can meaningfully narrow the
universe of off-campus student speech that school officials may treat as school speech. But it should not be
sufficient for off-campus student speech merely to target the school or the school environment in some nebulous way, or to spark controversy or strong disagreements in the student body.
Instead, based on the types of cases that lower courts
typically have confronted, and keeping in mind the interests and duties of school officials to educate students
while protecting them from harm, a few discrete categories of off-campus student speech can be identified as
“school speech” potentially subject to discipline by
school officials: namely, off-campus student speech that
(1) threatens or reasonably can be regarded as threatening to the school community, (2) intentionally targets
specific individuals or groups in the school community
(such as identifiable students and teachers), or (3) intentionally targets specific school functions or programs regarding matters essential to or inherent in the
functions or programs themselves (such that the speech
has the potential to substantially undermine the function or program). Under those focused categories, offcampus student speech that threatens violence to a student, a teacher, or the school would qualify as school
speech, as would speech that harasses or bullies another
individual. But day-to-day communication in the offcampus world that is not so targeted in a manner that
25
potentially could give rise to the sorts of harms described above should be well beyond the school’s purview to discipline.
The inquiry in the particular categories described
above necessarily will be circumstance-specific. One
such specific circumstance, relevant to this case, is when
the student’s off-campus speech targets an extracurricular athletic program in which the student participates.
Such speech might properly be regarded as school
speech that is potentially subject to discipline by school
officials if, for instance, it intentionally targets a feature
that is essential to or inherent in the athletic program
itself. Cf. Doninger v. Niehoff, 527 F.3d 41, 52 (2d Cir.
2008) (upholding the disqualification of a student from
running for class secretary based on off-campus speech
demonstrating a lack of “good citizenship,” in part because “participation in voluntary, extracurricular activities is a ‘privilege’ that can be rescinded when students
fail to comply with the obligations inherent in the activities themselves”) (citation omitted).
For example, a social-media post lambasting the
football coach’s play-calling might qualify as school
speech if written by a member of the football team, because such a message has intentionally targeted the
coach and his competence, which could in certain circumstances substantially undermine respect for the
coach’s authority and team cohesion, both of which are
essential components of a well-functioning football team
and its educational mission. The coach might thus be
justified in disciplining the player for such a post—for
example, by benching him—if the speech sufficiently
disrupted the team’s activities. Likewise, a post suggesting that women are ill-suited to mathematics might
26
be deemed school speech and potentially subject to discipline if posted by a mathlete on a school math team.
Or, as in Doninger, a student who posts vulgar, incendiary, and false information about the cancellation of a
school event might be prohibited from running for student government on the ground that class representatives “should teach good citizenship” if they are to “represent fellow students.” 527 F.3d at 52.
In all of those cases, the off-campus student speech
would be of the type that intentionally targets individuals or targets activities regarding matters that are “inherent in the activities themselves.” Doninger, 527
F.3d at 52. Importantly, such speech generally would
not qualify as school speech if posted by someone not on
the football team, or not a mathlete, or not running for
student government, respectively. Outside criticism of
a football team is not only common but expected, and
cannot reasonably be regarded as comparable to the undermining of the distinct imperative of team cohesion or
respect for the coach’s authority among members of the
team itself. Likewise, sexist remarks made off-campus
by a non-mathlete not rising to the level of depriving
other students of educational opportunities does not
comparably undermine the math team’s unity, and one
not running for student government is under no special
obligation to demonstrate “good citizenship” when off
campus.
As noted, in the context of an athletic program, team
cohesion and respect for the coach’s authority are particularly important for the proper functioning and educational mission of the team. The Sixth Circuit has explained that “[a]lthough team chemistry is impossible to
quantitatively measure, it is instrumental in determining a team’s success.” Lowery v. Euverard, 497 F.3d
27
584, 595 (2007), cert. denied, 555 U.S. 825 (2008). And
“[m]utual respect for the coach is an important ingredient of team chemistry.” Ibid. Those observations are
consistent with academic research positing a “significant moderate to large relationship between cohesion
and performance in sport.” Albert V. Carron et al., Cohesion and Performance in Sport: A Meta Analysis, 24
J. Sport & Exercise Psych. 168, 176 (2002). “[T]rust in
leadership allows the team members to suspend their
questions, doubts, and personal motives and instead
throw themselves into working toward team goals.”
Kurt T. Dirks, Trust in Leadership and Team Performance: Evidence from NCAA Basketball, 85 J. Applied
Psych. 1004, 1009 (2000). Trust may be especially important in a sport like cheerleading, in which team
members might have to catch and spot one another. Cf.
Kristen L. Kucera & Robert C. Cantu, National Center
for Catastrophic Sport Injury Research, ThirtySeventh Annual Report 28 (Tbl. 4a) (Sept. 27, 2020),
nccsir.unc.edu/reports (Report No. 2020-03) (showing
that women’s cheerleading appears to yield the largest
number of traumatic catastrophic injuries of any high
school sport save football).
It is thus reasonable to expect students who wish to
join a team to understand that their off-campus speech
might be treated as school speech potentially subject to
discipline by school officials if that speech intentionally
targets the team in a way that could undermine the program itself, for example by substantially undermining
team cohesion or respect for the authority of the coach
among the team. Cf. Agency for International Development v. Alliance for Open Society International,
Inc., 570 U.S. 205, 215 (2013). It is one thing for members of a team to be forced to endure, say, sustained and
28
profane criticism when it comes from members of the
general student body—but quite another when it comes
from a fellow teammate.
That is not to suggest that administrators of extracurricular programs have unfettered discretion to discipline student participants for their off-campus speech
in ways that other school administrators do not. Such
programs are an important and perhaps essential part
of a student’s educational experience, and generally are
subject to the same statutory nondiscrimination requirements that apply to all other school and classroom
activities. See 20 U.S.C. 1687 (explaining that the nondiscrimination provisions of Title IX apply to “all of the
operations of ” a school); 29 U.S.C. 794(b) (similar, under the Rehabilitation Act); 42 U.S.C. 2000d-4a (similar,
under Title VI); cf. Green v. County School Board, 391
U.S. 430, 435 (1968). Nor may schools engage in retaliatory behavior against protected conduct by those who
participate in sports or preclude the reporting of inappropriate behavior by a coach or teammates. Cf. Seamons v. Snow, 206 F.3d 1021, 1027 (10th Cir. 2000). Rather, the analysis above is simply a circumstancespecific application of the principle that when a student’s off-campus speech intentionally targets a discrete school program in a manner that could substantially undermine the essential features of that program,
the student should expect that speech to qualify as
school speech potentially subject to discipline.
3. Determining whether certain off-campus student
speech may be treated as “school speech” within the
proper purview of school officials is a different issue
from whether discipline of a student based on such
speech would violate the First Amendment. Cf. Morse,
551 U.S. at 400-401 (first determining whether the
29
speech at issue was “school speech” before determining
whether the regulation of that speech was constitutional). Just because off-campus student speech qualifies as school speech does not necessarily mean that any
particular discipline for that speech would comport with
the Constitution. For example, off-campus speech by
student-athletes demanding that their coach resign or
be fired might properly be deemed school speech (because it intentionally targets the coach on a topic that
undermines respect for his authority among the team),
but disciplining the students for that speech nevertheless might be unconstitutional, as for instance if the
coach had affirmatively solicited their views on whether
he should resign. Cf. Pinard v. Clatskanie School District 6J, 467 F.3d 755 (9th Cir. 2006) (involving a similar
situation).
To determine whether particular discipline of school
speech is constitutional, courts generally have applied
this Court’s four school-speech precedents. Cf. Pet.
App. 55a-58a. Notably, as this Court has recognized,
each of those four decisions adopted a different rule tailored to the circumstances of the case: substantial disruption in Tinker, vulgarity in Fraser, school-sponsored
speech in Kuhlmeier, and promotion of illegal drugs in
Morse. See Morse, 551 U.S. at 406 (“[T]he rule of
Tinker is not the only basis for restricting student
speech.”); id. at 405 (“Whatever approach Fraser employed, it certainly did not conduct the ‘substantial disruption’ analysis prescribed by Tinker.”) (citation omitted). Here, for example, petitioner has suggested that
if respondent’s Snapchat posts qualify as school speech,
her suspension from the cheerleading team was justified because the posts were substantially disruptive under Tinker. See Pet. Br. 30-31, 46. Other cases might
30
present situations more amenable to arguments under
other precedents; for example, a football player who
posted messages encouraging the use of illegal anabolic
steroids in violation of team rules potentially could be
disciplined under Morse.
Some principles distilled from this Court’s schoolspeech precedents likewise are relevant to assessing
whether school speech targeted at extracurricular athletic programs may be subject to discipline consistent
with the First Amendment. Restrictions applied to
school speech in that context should be reasonable and
tied to safeguarding, or preventing the substantial undermining of, an essential or inherent feature of the
program, in service of both the success of the program
and the safety of its participants. It is relevant as well
whether a student who objects to such conditions can
forgo participation in that particular program. Cf. Alliance for Open Society, 570 U.S. at 214; Vernonia, 515
U.S. at 657 (recognizing that “students who voluntarily
participate in school athletics have reason to expect intrusions upon normal rights and privileges” even beyond those intrusions “imposed on students generally”);
Lowery, 497 F.3d at 597 (“[T]here is a difference between the way a school relates to the student body at
large, and to students who voluntarily ‘go out’ for athletic teams.”).
These considerations can be regarded as an application of the Tinker standard to student speech that is
substantially disruptive in the particular context of an
extracurricular sports program. These considerations
also suggest that the First Amendment would afford
greater, though still qualified, latitude for discipline imposed on the ground that the student’s speech substantially undermines or disrupts the program in light of its
31
special demands on those students who choose to participate, when the discipline is limited to the program
and does not extend beyond removal from that program. Cf. Doninger, 527 F.3d at 52; Lowery, 497 F.3d
at 597. Of course, if the participant’s speech rises to the
level of threats or harassment that would justify discipline of any student in the school, the participant would
not be immune from such discipline merely by virtue of
the speech or conduct’s having occurred in the context
of the program.
C. This Court Should Vacate The Judgment Below
The court of appeals incorrectly held that off-campus
student speech is categorically immune from discipline
by public-school officials under this Court’s “school
speech” jurisprudence, and so it did not engage in any
of the analysis set forth above. The United States takes
no position on whether respondent’s particular posts
would fall within a category of off-campus student
speech that may properly be regarded as school speech,
or whether, if so, they were substantially disruptive under Tinker or otherwise actionable under specific principles this Court might articulate that would be applicable here. Those questions are best addressed in the
first instance by the courts below. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (explaining that this
Court is “a court of review, not of first view”). Accordingly, this Court should vacate the judgment below and
remand for further proceedings.
32
CONCLUSION
The judgment of the court of appeals should be vacated and the case remanded for further proceedings.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Acting Solicitor General
BRIAN M. BOYNTON
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
MICHAEL S. RAAB
AMANDA L. MUNDELL
Attorneys
MARCH 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.