B.L., a minor, by and through her father LAWRENCE LEVY and her mother BETTY LOU LEVY v. MAHANOY AREA SCHOOL DISTRICT
No. 19-1842
United States Court of Appeals for the Third Circuit
June 30, 2020
2020 Decisions 625
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
PRECEDENTIAL
Opinions of the United States Court of Appeals for the Third Circuit
6-30-2020
B.L. v. Mahanoy Area School District
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Recommended Citation
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Argued November 12, 2019
(Filed: June 30, 2020)
Arleigh P. Helfer, III
Theresa E. Loscalzo
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Sara J. Rose [Argued]
American Civil Liberties Union
P.O. Box 23058
Pittsburgh, PA 15222
Molly M. Tack-Hooper
American Civil Liberties Union of Washington Foundation
901 Fifth Avenue
Suite 630
Seattle, WA 19102
Counsel for Appellees
David W. Brown
Michael I. Levin [Argued]
Levin Legal Group, P.C.
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006
John G. Dean
Elliott Greenleaf & Dean
201 Penn Avenue
Suite 202
Scranton, PA 18503
Francisco M. Negrón, Jr.
National School Boards Association
1680 Duke Street
Room 523
Alexandria, VA 22314
Counsel for Amici Curiae National School Boards Association; Pennsylvania School Boards Association; Delaware School Boards Association; New Jersey School Boards Association; Pennsylvania Principals Association; National Association of Elementary School Principals; National Association of Secondary School Principals; and AASA, The School Superintendents Association
Sophia Cope
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amici Curiae Electronic Frontier Foundation, Student Press Law Center, Pennsylvania Center for the First Amendment, and Brechner Center for Freedom of Information
Marieke T. Beck-Coon
Foundation for Individual Rights in Education
510 Walnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Amicus Curiae Foundation for Individual Rights in Education
KRAUSE, Circuit Judge.
Public school students’ free speech rights have long depended on a vital distinction: We “defer to the school[]” when its “arm of authority does not reach beyond the schoolhouse gate,” but when it reaches beyond that gate, it “must answer to the same constitutional commands that bind all other institutions of government.” Thomas v. Bd. of Educ., 607 F.2d 1043, 1044–45 (2d Cir. 1979). The digital revolution, however, has complicated that distinction. With new forms of communication have come new frontiers of regulation, where educators assert the power to regulate online student speech made off school grounds, after school hours, and without school resources.
This appeal takes us to one such frontier. Appellee B.L. failed to make her high school‘s varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption “fuck cheer” to Snapchat. J.A. 484. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.‘s favor, ruling that the school had violated her First Amendment rights. We agree and therefore will affirm.
I. BACKGROUND
B.L. is a student at Mahanoy Area High School (MAHS). As a rising freshman, she tried out for cheerleading and made
B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story.1 The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” J.A. 484. To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that‘s [sic] doesn‘t matter to anyone else? 😓.”2 J.A. 485.
One of B.L.‘s teammates took a screenshot of her first snap and sent it to one of MAHS‘s two cheerleading coaches. That coach brought the screenshot to the attention of her co-coach,
The coaches decided B.L.‘s snap violated team and school rules, which B.L. had acknowledged before joining the team, requiring cheerleaders to “have respect for [their] school, coaches, . . . [and] other cheerleaders“; avoid “foul language and inappropriate gestures“; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” J.A. 439. They also felt B.L.‘s snap violated a school rule requiring student athletes to “conduct[] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” J.A. 486. So the coaches removed B.L. from the JV team. B.L. and her parents appealed that decision to the athletic director, school principal, district superintendent, and school board. But to no avail: Although school authorities agreed B.L. could try out for the team again the next year, they upheld the coaches’ decision for that year. Thus was born this lawsuit.
B.L. sued the Mahanoy Area School District (School District or District) in the United States District Court for the Middle District of Pennsylvania. She advanced three claims under
The District Court granted summary judgment in B.L.‘s favor. It first ruled that B.L. had not waived her speech rights by agreeing to the team‘s rules and that her suspension from the
II. DISCUSSION3
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
At its heart, though, this appeal requires that we answer just two questions. The first is whether B.L.‘s snap was protected speech. If it was not, our inquiry is at an end. But if it was, we must then decide whether B.L. validly waived that protection. Although navigating those questions requires some stopovers along the way, we ultimately conclude that B.L.‘s snap was protected and that she did not waive her right to post it.
A. B.L.‘s Speech Was Entitled to First Amendment Protection
We must first determine what, if any, protection the First Amendment affords B.L.‘s snap. To do so, we begin by canvassing the Supreme Court‘s student speech cases. Next, we turn to a threshold question on which B.L.‘s rights depend: whether her speech took place “on” or “off” campus. Finally, having found that B.L.‘s snap was off-campus speech, we assess the School District‘s arguments that it was entitled to punish B.L. for that speech under Fraser, Tinker, and several other First Amendment doctrines.
1. Students’ broad free speech rights and the on- versus off-campus distinction
For over three-quarters of a century, the Supreme Court has recognized that although schools perform “important, delicate, and highly discretionary functions,” there are “none that they may not perform within the limits of the Bill of Rights.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). And the free speech rights of minors are subject to “scrupulous protection,” lest we “strangle the free mind at its source and
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court reiterated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506. Expanding on Barnette, Tinker also held that student speech rights are “not confined to the supervised and ordained discussion” of the classroom; instead, they extend to all aspects of “the process of attending school,” whether “in the cafeteria, or on the playing field, or on the campus during authorized hours.” Id. at 512–13. Without “a specific showing of constitutionally valid reasons to regulate their speech,” then, “students are entitled to freedom of expression,” id. at 511, and cannot be punished for “expressions of feelings with which [school officials] do not wish to contend,” id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
To these broad rights, Tinker added a narrow exception “in light of the special characteristics of the school environment.” 393 U.S. at 506. Some forms of speech, the Court recognized, can “interfere[] . . . with the rights of other students to be secure and to be let alone.” Id. at 508. So as part of their obligation “to prescribe and control conduct in the schools,” id. at 507, school officials may regulate speech that “would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,‘” id. at 509 (quoting Burnside, 363 F.2d at 749). To exercise that regulatory power, however, schools must identify “more than a mere desire to avoid the discomfort and unpleasantness that always
Tinker thus struck a balance, reaffirming students’ rights but recognizing a limited zone of heightened governmental authority. But that authority remains the exception, not the rule. Where Tinker applies, a school may prohibit student speech only by showing “a specific and significant fear of disruption,” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926 (3d Cir. 2011) (en banc) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001)), and where it does not, a school seeking to regulate student speech “must answer to the same constitutional commands that bind all other institutions of government,” Thomas, 607 F.2d at 1045.
In each of three later cases, the Court identified a limited area in which schools have leeway to regulate student speech without meeting Tinker‘s substantial disruption standard. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), it held that to “inculcate the habits and manners of civility,” schools may “prohibit the use of vulgar and offensive terms.” Id. at 681, 683 (citation omitted). In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), it held that officials may regulate student speech in the context of “school-sponsored . . . expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” provided “their actions are reasonably related to legitimate pedagogical concerns.” Id. at 271–73. And in Morse v. Frederick, 551 U.S. 393 (2007), given educators’ “important—indeed, perhaps compelling[—]interest” in “deterring drug use by schoolchildren,” id. at 407 (internal quotation marks and citation omitted), the Court held that schools
Although each of these cases added a wrinkle, none disturbed the basic framework on which Tinker relied. Fraser could not have been disciplined had he “delivered the same speech in a public forum outside the school context.” Morse, 551 U.S. at 405. Kuhlmeier‘s editorial authority applies “only when a student‘s school-sponsored speech could reasonably be viewed as speech of the school itself,” which “is not lightly to be presumed.” Saxe, 240 F.3d at 213–14. And central to Morse was not only the speech‘s relationship to the school day—that it was made “during school hours” and “at a school-sanctioned activity,” 551 U.S. at 400–01 (citation omitted)—but also that juvenile drug use “cause[s] severe and permanent damage to the health and well-being of young people,” id. at 407.
The Court‘s case law therefore reveals that a student‘s First Amendment rights are subject to narrow limitations when speaking in the “school context” but “are coextensive with [those] of an adult” outside that context. J.S., 650 F.3d at 932.
2. B.L.‘s snap was “off-campus” speech
To define B.L.‘s speech rights with precision, therefore, we must ask whether her snap was “on-” or “off-campus” speech—terms we use with caution, for the schoolyard‘s physical boundaries are not necessarily coextensive with the “school context,” J.S., 650 F.3d at 932. After reviewing the line separating on- from off-campus speech, we hold B.L.‘s speech falls on the off-campus side.
Equally well established, however, is that “the ‘school yard’ is not without boundaries and the reach of school authorities is not without limits.” Layshock, 650 F.3d at 216. School officials, in other words, may not “reach into a child‘s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” Id. Permitting such expansive authority would twist Tinker‘s limited accommodation of the “special characteristics of the school environment,” 393 U.S. at 506, into a broad rule reducing the free speech rights of all young people who happen to be enrolled in public school.
The courts’ task, then, is to discern and enforce the line separating “on-” from “off-campus” speech. That task has been
Although the Supreme Court has not addressed the on- and off-campus divide in the context of online speech, it has laid down invaluable road markers that guide our way. The Court first addressed the internet‘s “vast democratic forums” in Reno v. ACLU, 521 U.S. 844, 868 (1997). Reno recognized that the internet poses unique challenges but also offers unique advantages, “provid[ing] relatively unlimited, low-cost capacity for communication of all kinds” and content “as diverse as human thought,” id. at 870 (citation omitted). In applying the First Amendment to this technology, the Court was careful not to discard existing doctrines. Instead, it applied those doctrines faithfully, trusting that even faced with a “new marketplace,” “[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit
The lesson from Reno and Packingham is that faced with new technologies, we must carefully adjust and apply—but not discard—our existing precedent. The thrust of that lesson is not unique to the First Amendment context. But it may be of special importance there because each new communicative technology provides an opportunity for “unprecedented” regulation. Packingham, 137 S. Ct. at 1737. And even when it is unclear whether the government will seize upon such an opportunity, the lack of clarity itself has a harmful “chilling effect on free speech.” Reno, 521 U.S. at 872. Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.
Thankfully, significant groundwork has been laid. In 2011, we decided two appeals as a full Court, J.S. and Layshock, both of which involved a student‘s fake MySpace profile ridiculing a school official using crude language. Although the profiles were created away from school, they were not far removed from the school environment: They attacked school officials, used photos copied from the schools’ websites, were shared with students, caused gossip at school and, in Layshock, were viewed on school computers. J.S., 650 F.3d at 920–23;
J.S. and Layshock yield the insight that a student‘s online speech is not rendered “on campus” simply because it involves the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment. That was true in the analog era, see, e.g., Thomas, 607 F.2d at 1050–52; see also Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 611–12, 616–17 (5th Cir. 2004), and it remains true in the digital age.
Applying these principles to B.L.‘s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv“). Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. And while the snap mentioned the school and reached
3. The punishment of B.L.‘s off-campus speech violated the First Amendment
We next ask whether the First Amendment allowed the School District to punish B.L. for her off-campus speech. The District defends its decision under (i) Fraser, (ii) Tinker, and
i. B.L.‘s punishment cannot be justified under Fraser
The School District principally defends its actions based on its power “to enforce socially acceptable behavior” by banning “vulgar, lewd, obscene, or plainly offensive” speech by students. Appellant‘s Br. 7–8. Under Fraser, such speech receives “no First Amendment protection . . . in school.” Saxe, 240 F.3d at 213 (emphasis added). But the District‘s argument runs aground on our precedent holding that Fraser does not apply to off-campus speech. J.S., 650 F.3d at 932–33; Layshock, 650 F.3d at 216–17, 219. As a panel, we may not revisit that precedent absent “intervening authority,” Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996), which neither party identifies here. See Morse, 551 U.S. at 405 (“Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected.“).
To prevail under Fraser, therefore, the School District must explain why J.S. and Layshock do not supply the decisional rule. Its attempts to do so come in several varieties but share the same thrust: that we should apply Fraser to off-campus speech where the speech or punishment involved an extracurricular activity. We are unpersuaded.
To begin, the argument collides with our precedent. In Layshock, among several other punishments, the student was “banned from all extracurricular activities.” 650 F.3d at 210. But at no point did we suggest any relevant distinction among the punishments he had received. Quite the opposite:
Even apart from Layshock‘s guidance, we see no sound reason why we should graft an extracurricular distinction onto our case law. Yes, students have “a reduced expectation of privacy” under the Fourth Amendment when they participate in extracurricular athletics. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 661–62, 665 (1995). But the School
The same goes for the argument that B.L. had no “constitutionally protected property right to participate in extracurricular activities,” Appellant‘s Br. 17. Be that as it may,6 due process case law—which also “depends upon a balancing of the individual rights and the governmental interests affected,” Main Rd. v. Aytch, 522 F.2d 1080, 1090 (3d Cir. 1975)—is an equally poor fit in the First Amendment context. To prevail on a free speech claim, a plaintiff need not show that his interests in speaking outweigh the government‘s interests in suppressing the speech. Such a rule would “revise the ‘judgment [of]
The School District next offers up an analogy: that students who join extracurriculars “represent their schools much in the way that government employees represent their employer.” Appellant’s Br. 30. So by going out for the team, it posits, students subject their speech rights to coaches’ whims so long as their speech does not involve “a matter of public concern.” Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This argument, however, depends on dicta from the Sixth Circuit, which went on to clarify that it was not “grafting a public concern requirement onto” student speech doctrine and had invoked the Pickering doctrine only to discuss whether “disruption will occur when a subordinate challenges the authority of his or her superior.” See Lowery v. Euverard, 497 F.3d 584, 598 n.5 (6th Cir. 2007). And neither “the Supreme Court nor any other federal court of appeals has held [the personal matter/public concern] distinction applicable in student speech cases.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766 (9th Cir. 2006). The reason is simple: As we have recognized,
Above all, we cannot depart from J.S. and Layshock without undermining the values those cases sought to protect. What was “unseemly and dangerous” about the efforts to apply Fraser to off-campus speech was not the punishments the students received, but that those punishments were used to “control” students’ free expression in an area traditionally beyond regulation. Layshock, 650 F.3d at 216. Those concerns apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extracurricular activities, which “are an important part of an overall educational program,” Br. of Amicus Curiae Foundation for Individual Rights in Education 7–8 (citation omitted). Thus, whatever the school’s preferred mode of discipline, it implicates the
No one challenges that is exactly what happened to B.L. As a result, we can no more hold that B.L. abdicated her
ii. Nor can B.L.’s punishment be justified under Tinker
The School District falls back on Tinker, arguing that B.L.’s snap was likely to substantially disrupt the cheerleading program. But as we have explained, although B.L.’s snap involved the school and was accessible to MAHS students, it took place beyond the “school context,” J.S., 650 F.3d at 932. We therefore confront the question whether Tinker applies to off-campus speech.
That is a question we have avoided answering to date. In Layshock, the school defended its decision to punish the student only under Fraser. See 650 F.3d at 216. And in J.S., we were able to “assume, without deciding,” that Tinker applied to speech like J.S.’s, 650 F.3d at 926, because we held that the school had not “reasonably forecast[] a substantial disruption of or material interference with the school,”
First, our choice to sidestep the issue in J.S. adhered to the maxim that, where possible, we should avoid difficult constitutional questions in favor of simpler resolutions. There, it was sensible to avoid the issue because we could resolve the case by applying well-settled precedent addressing the substantial disruption standard in the context of the school environment. See, e.g., Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 254–57 (3d Cir. 2002); Saxe, 240 F.3d at 211–12. But that is not the case here. The School District’s defense of its decision to punish B.L. focuses not on disruption of the school environment at large, but on disruption in the extracurricular context—specifically, the cheerleading program B.L. decried in her snap. And, as the parties’ and amici’s dueling citations reveal, the question of how to measure the potentially disruptive effect of student speech on particular extracurricular activities has bedeviled our sister circuits,9 and it is not one we
Second, when we decided J.S., the social media revolution was still in its infancy, and few appellate courts had grappled with Tinker’s application to off-campus online speech. In avoiding the issue, we afforded our sister circuits the chance to
Finally, while legal uncertainty of any kind is undesirable, uncertainty in this context creates unique problems. Obscure lines between permissible and impermissible speech have an independent chilling effect on speech. See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002) (reasoning that the “uncertain reach” of a law punishing speech would “chill speech within the
The time has come for us to answer the question. We begin by canvassing the decisions of our sister circuits. We then consider the wisdom of their various approaches, tested against Tinker’s precepts. Finally, we adopt and explain our own, concluding that Tinker does not apply to off-campus speech and reserving for another day the
a. Other courts’ approaches
Our sister circuits have approached this issue in three ways. One group applies Tinker where it was reasonably foreseeable that a student’s off-campus speech would reach the school environment. That test sprung from trying circumstances: In Wisniewski ex rel. Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007), a student created an instant messaging icon showing “a pistol firing a bullet at a person’s head, above which were dots representing splattered blood,” and beneath which were the words “Kill Mr. VanderMolen,” the student’s teacher. Id. at 35–36. That icon was visible to the student’s “buddies,” and he sent messages displaying it to fellow students. Id. at 36. In upholding his suspension, the Second Circuit held that it was appropriate to apply Tinker because “it was reasonably foreseeable that the IM icon would come to the attention of school authorities,” id. at 39, and that the violence-threatening speech satisfied Tinker’s substantial disruption standard, id. at 38–39. The Eighth Circuit, in another case involving a threat of violence, took the same approach. See
But from those cases involving threats of violence, the “reasonable foreseeability” standard spread far and wide. Multiple circuits have applied it in cases involving sexual or racial harassment. See C.R. ex rel. Rainville v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1146, 1151 (9th Cir. 2016); S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773, 777–78 (8th Cir. 2012). And the Second Circuit has applied it in a case involving neither violence nor harassment: In Doninger, the court used it to assess the punishment of a student who urged others to contact a school official to protest a concert’s postponement. 527 F.3d at 44–45, 48–52. The Eighth Circuit has likewise suggested that the standard governs all forms of off-campus speech, not just violent threats and harassment. S.J.W., 696 F.3d at 777.
Another group of circuits applies Tinker to off-campus speech with a sufficient “nexus” to the school’s “pedagogical interests.” Kowalski v. Berkeley Cty. Schs., 652 F.3d 565, 573 (4th Cir. 2011). Kowalski involved a student who created a MySpace page harassing a fellow student. Id. at 567–68. In assessing the student’s suspension, the Fourth Circuit emphasized that student-on-student harassment “can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.” Id. at 572 (citation omitted). Concluding that schools “must be able to prevent and punish harassment and bullying in order to provide a safe school environment,”
Finally, some circuits have applied Tinker to off-campus speech without articulating a governing test or standard. See, e.g., Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 394 (5th Cir. 2015) (en banc) (declining to “adopt a specific rule” but applying Tinker to a student who “intentionally direct[ed] at the school community [a] rap recording containing threats to, and harassment and intimidation of, two teachers”); Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013) (declining to “divine and impose a global standard for . . . off-campus speech” but holding that Tinker reaches off-campus speech presenting “an identifiable threat of school violence”).
b. Issues with these approaches
We sympathize with our sister circuits, which have faced the unenviable task of assessing students’ free speech rights against the backdrop of “school officials’ need to provide a safe school environment,” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 983 (9th Cir. 2001), and find much to commend in their thoughtful opinions. Ultimately, however, we find their approaches unsatisfying in three respects.
First, “bad facts make bad law,” United States v. Joseph, 730 F.3d 336, 337 (3d Cir. 2013), and one unmistakable trend from the case law is that the most challenging fact patterns have produced rules untethered from the contexts in which they arose. The Second Circuit provides a case in point. It is understandable that the court in Wisniewski, focusing on the
Second, and as a result of this expansionary dynamic, our sister circuits have adopted tests that sweep far too much speech into the realm of schools’ authority. Start with reasonable foreseeability. Technology has brought unprecedented interconnectivity and access to diverse forms of speech. In the past, it was merely a possibility, and often a remote one, that the speech of a student who expressed herself in the public square would “reach” the school. But today, when a student speaks in the “modern public square” of the internet, Packingham, 137 S. Ct. at 1737, it is highly possible that her speech will be viewed by fellow students and accessible from school.
The nexus test suffers from similar overbreadth. In holding that schools have regulatory authority over any speech, whether on or off campus, that “interfere[s] with the work and discipline of the school,” Kowalski, 652 F.3d at 574, it collapses Tinker’s scope of application and rule into one analytical step. The result is tautological: Schools can regulate off-campus speech under Tinker when the speech would satisfy Tinker. And the effect is to erase the dividing line between speech in “the school context” and beyond it, J.S., 650 F.3d at 927, a line which is vital to young people’s free speech rights. Worse, in extending Tinker wherever there is a “nexus” to “pedagogical interests,” Kowalski, 652 F.3d at 573, the test raises the specter of officials’ asserting the power to regulate “any student speech that interferes with [the] school’s educational mission,” a power that “can easily be manipulated in dangerous ways.” J.S., 650 F.3d at 927 (internal quotation marks omitted) (quoting Morse, 551 U.S. at 423 (Alito, J., concurring)). Such an expansion of schools’ regulatory power would have “ominous implications” indeed. J.S., 650 F.3d at 939–40 (Smith, J., concurring) (exploring the consequences not only for students, but also for adults, of extending Tinker to off-campus speech).
Third, other circuits’ approaches have failed to provide clarity and predictability. This is true for those that have “declined to adopt a rule,” e.g., Bell, 799 F.3d at 394, leaving “students, teachers, and school administrators” without “clear guidance,” Longoria, 942 F.3d at 265 (citation omitted). But it is also true for those that have crafted a rule. In layering a
In the end, although the courts to address this issue have done so thoughtfully, we conclude that their approaches sweep in too much speech and distort Tinker’s narrow exception into a vast font of regulatory authority. We must forge our own path.
c. Our approach
We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur. In so holding, we build on a solid foundation, for in his concurrence in J.S., now Chief Judge Smith, joined by four colleagues, embraced this rule, explaining “that the
From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would “materially and substantially interfere[] with the requirements of appropriate discipline,” Tinker, 393 U.S. at 505 (citation omitted), is stripped of the constitutional shield it enjoys “outside [that] context,” Morse, 551 U.S. at 405. Tinker’s focus on disruption makes sense when a student stands in the school context, amid the “captive audience” of his peers. Fraser, 478 U.S. at 684. But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others’ choices and reactions.
Recent technological changes reinforce, not weaken, this conclusion. Like all who have approached these issues, we are “mindful of the challenges school administrators face,” including the need to manage the school environment in the digital age. Layshock, 650 F.3d at 222 (Jordan, J., concurring). We are equally mindful, however, that new communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the
Holding Tinker inapplicable to off-campus speech also offers the distinct advantage of offering up-front clarity to students and school officials. To enjoy the free speech rights to which they are entitled, students must be able to determine when they are subject to schools’ authority and when not. A test based on the likelihood that speech will reach the school environment—even leaving aside doubts about what it means to “reach” the “school environment”—fails to provide that clarity. The same is true for a test dependent on whether the student’s speech has a sufficient “nexus” to unspecified pedagogical interests or would substantially disrupt the school
Nothing in this opinion questions school officials’ “comprehensive authority” to regulate students when they act or speak within the school environment. J.S., 650 F.3d at 925 (quoting Tinker, 393 U.S. at 507). Tinker applies, as it always has, to any student who, on campus, shares or reacts to controversial off-campus speech in a disruptive manner. That authority is not insignificant, and it goes a long way toward addressing the concern, voiced by the School District and our concurring colleague, that holding Tinker is limited to on-campus speech will “sow . . . confusion” about what to do when a student’s controversial off-campus speech “provoke[s] significant disruptions within the school,” Concurr. 6. The answer is straightforward: The school can punish any disruptive speech or expressive conduct within the school context that meets Tinker’s standards—no matter how that disruption was “pro-voke[d].” It is the off-campus statement itself that is not subject to Tinker’s narrow recognition of school authority. But at least in the physical world, that is nothing new, and no one, including our colleague, has second-guessed that longstanding
Nor are we confronted here with off-campus student speech threatening violence or harassing particular students or teachers. A future case in the line of Wisniewski, D.J.M., Kowalski, or S.J.W., involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of
True, our rule leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate. Yet we return to Tinker and find in its pages wisdom and comfort:
[O]ur Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
393 U.S. at 508–09 (internal citation omitted); see Barnette, 319 U.S. at 641 (encouraging courts to “apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization”).
Tinker’s careful delineation of schools’ authority, like these principles, is no less vital even in today’s digital age to ensure “adequate breathing room for valuable, robust speech.” J.S., 650 F.3d at 941 (Smith, J., concurring). For these reasons, we hold that Tinker does not apply to off-campus speech and thus cannot justify the decision to punish B.L.
Moving beyond student speech,14 the School District advances a few arguments for why B.L.’s snap enjoyed no
First, the School District contends that “vulgar language [i]s ‘low-value speech’ that c[an] be restricted ‘to a greater extent than would otherwise be permissible.’” Appellant’s Br. 35 (quoting C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 211 (3d Cir. 2000) (Alito, J., dissenting)). But in doing, the District relies on a dissenting opinion, and in any event its selective quotation omits the prepositional phrase “[i]n the public schools” and our citation of Fraser, see C.H., 226 F.3d at 211 (Alito, J., dissenting), both of which make clear we were not making a broad statement that non-obscene profanity enjoys reduced
Second, the School District argues B.L.’s snap was unprotected because it “expressed no opinion.” Appellant’s Br. 34–35. In support, it quotes B.L., who, when asked whether she was “trying to send a message,” replied she “was just mad
Finally, the School District argues that “profane speech is not protected when aimed at minors.” Appellant‘s Reply 2 (capitalization altered). Again, the District misses the mark. Its argument relies on FCC v. Pacifica Foundation, 438 U.S. 726 (1978), a case involving the sui generis context of radio broadcasting, which is “uniquely accessible to children,” id. at 749. But nowhere did Pacifica suggest that indecent speech falls outside the First Amendment. Moreover, B.L.‘s snap was no more indecent, or targeted at an “intended audience [of] minors,” Appellant‘s Reply 3, than the MySpace profiles we held were entitled to First Amendment protection in J.S. and Layshock.
For these reasons, we hold that B.L.‘s snap was not subject to regulation under Tinker or Fraser and instead enjoyed the full scope of First Amendment protections.
B. B.L. Did Not Waive Her Free Speech Rights
The School District next argues that by agreeing to certain school and team rules, B.L. waived her First Amendment right to post the “fuck cheer” snap. We disagree.
To begin, we note that the District Court ruled that requiring B.L. to waive her First Amendment rights as a condition of joining the team violated the unconstitutional conditions doctrine, see Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604–06 (2013), and that both B.L. and an amicus urge us to affirm that ruling. No doubt, for the government to condition participation in a beneficial program on a waiver of First Amendment rights raises serious constitutional concerns, particularly where the government “seek[s] to leverage [benefits] to regulate speech outside the contours of the program itself.” Agency for Int‘l Dev. v. All. for Open Soc‘y Int‘l, Inc., 570 U.S. 205, 214–15 (2013); see also, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 399–401 (1984). At the same time, however, the line between constitutional and unconstitutional conditions “is hardly clear,” Agency for Int‘l Dev., 570 U.S. at 215, and 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. Fortunately, we need not decide on which side of the line this case falls because we conclude that B.L. did not waive her right to the speech at issue here.
All rights, including free speech rights, can be waived. Curtis Publ‘g Co. v. Butts, 388 U.S. 130, 142–43 (1967). But waivers “must be voluntary, knowing, . . . intelligent, . . . [and] established by ‘clear’ and ‘compelling’ evidence,” Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1094 (3d Cir. 1988) (citation omitted), and courts must “indulge in every reasonable presumption against waiver,” id. at 1095 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Applying those standards, we conclude that B.L.‘s snap does not clearly “fall within the scope,” United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013) (citation omitted), of any of the rules on which the School District relies.
We begin with the “Respect Rule” governing MAHS cheerleaders:
Please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced[;] this includes foul language and inappropriate gestures.
J.A. 439. B.L.‘s snap contained foul language and disrespected her school and team. But the rule‘s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.”
The “Negative Information Rule” is likewise inapplicable. It states “[t]here will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” J.A. 439. Unlike the Respect Rule, this rule by its terms reaches off-campus speech. But it reaches only “information,”
The School District‘s last recourse is the “Personal Conduct Rule” in MAHS‘s student handbook. It provides:
Participation on an athletic team or cheerleading squad in the Mahanoy Area School District is a privilege and the participants must earn the right to represent Mahanoy Schools by conducting themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner. Any participant whose conduct is judged to reflect a discredit upon himself/herself, the team, or the Mahanoy Schools, whether or not such activity takes place during or outside school hours during the sports season, will be subject to disciplinary action as determined by the coach, the athletic director and/or the school principal.
J.A. 486. This rule does not lend itself to a finding of waiver for two reasons. First, it applies only “during the sports season,”
We therefore hold that B.L.‘s snap was not covered by any of the rules on which the School District relies and reject its contention that B.L. waived her First Amendment rights.
* * *
The heart of the School District‘s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant‘s Br. 24 (citation omitted). To be sure, B.L.‘s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution‘s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.” Tinker, 393 U.S. at 508–09.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.
AMBRO, Circuit Judge, concurring in the judgment
I dissent because it is a fundamental principle of judicial restraint that courts should “neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–47 (1936)) (quotation marks omitted). Cf. Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“For adjudication of constitutional issues[,] concrete legal issues[] presented in actual cases, not abstractions[,] are requisite.“) (citation and quotation marks omitted).
In Tinker the Supreme Court held that public school students do not shed their freedom of speech at the “schoolhouse gate,” id. at 506, and their expression may not be suppressed unless, to repeat, school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id. at 513. Our Court in two en banc rulings expressly declined to hold that Tinker does not apply to off-campus speech and applied
B.L. concedes we need not decide whether Tinker‘s test applies off campus. See, e.g., Appellee‘s Br. 22 (“It is an open question whether public schools can ever punish students’ out-of-school speech—even if the Tinker standard is satisfied. . . . The Court need not answer that question in this case.“). Nonetheless, my colleagues in the majority hold that ”Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school‘s imprimatur[,]” Maj. Op. 33, and leave open the door for schools to regulate off-campus student speech if it threatens violence or harasses particular students or teachers, id. at 37. However, the case before us does not involve “school-supervised channels,” nor does it concern speech that
The case before us is straightforward—B.L.‘s Snap is not close to the line of student speech that schools may regulate. B.L. was suspended from her school‘s cheerleading team as punishment for a Snap that said “fuck cheer,” which she created on her own smartphone, on her own time on a weekend, while off-campus, and not participating in any school-sponsored activity. The Snap did not mention the School District, the school, or any individuals, and did not feature any team uniforms, school logos, or school property. It caused complaints by a few other cheerleaders but no “substantial disruptions,” and the coaches testified that they did not expect the Snap would substantially disrupt any activities in the future.1
My colleagues correctly point out that the School District‘s remaining arguments also are unavailing. That students have a reduced expectation of privacy under the Fourth Amendment when they participate in extracurricular athletics, see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 661–62, 665 (1995), has no bearing on our First Amendment jurisprudence. We have never and decline now to “graft an extracurricular distinction onto our [First Amendment] case law.” Maj. Op. 18. I agree. Nor am I aware of any other circuit court that has adopted such a distinction.
Instead, ours is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech. A few Circuits have flirted with such a holding and have declined to apply Tinker to off-campus speech on a case-by-case basis. See, e.g., Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 615, 619–20 (5th Cir. 2004) (declining to apply Tinker where student at home drew a picture of school being attacked, and that picture inadvertently ended up on campus, because it was off-campus speech not directed at the school and the student took no step to bring the speech on campus); Thomas v. Bd. of Educ., 607 F.2d 1043, 1051 (2d Cir. 1979) (holding that school violated students’ speech rights by suspending them for publishing an underground lewd newspaper that was printed and distributed off campus, even if an occasional article was composed on campus, because the newspaper was “off-campus expression“). However, those same Circuit Courts have subsequently applied Tinker to off-campus speech. See, e.g., Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34, 39–40 (2d Cir. 2007) (applying Tinker to uphold punishment of student who sent instant messages to fellow students from home computer during non-school hours depicting teacher being shot because the student‘s hostile off-campus speech posed a reasonably foreseeable threat of disruption in school); Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 396 (5th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 1166 (2016) (declining to “adopt any rigid standard,” but applying Tinker to a student who posted off site a song recording that threatened and harassed two teachers); see also Doninger v. Niehoff, 527 F.3d 41, 50–53 (2d Cir. 2008) (applying Tinker to uphold punishment of student whose blog demeaned school administrators for cancelling a school concert, and clarifying
The bottom line is that Circuit Courts facing harder and closer calls have stayed their hand and declined to rule categorically that Tinker does not apply to off-campus speech. Yet we do so here in a case bereft of substantial disruptions within the school. I fear that our decision will sow further confusion. For example, how does our holding apply to off-campus racially tinged student speech? Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school? Hard to tell. We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.
The craft of judging has a restraining principle: Do not decide today what can be decided tomorrow, for tomorrow it may not need to be decided. We twist that tenet today by a wide-reaching holding for facts outside the question my colleagues call. In J.S., despite a well-reasoned concurrence urging that Tinker not apply to off-campus student speech, J.S., 650 F.3d at 936–41 (Smith, J.), our en banc decisions in both it and Layshock declined to go that far. Yet a panel does so today with no more compelling context than either en banc case. Our task is to balance tolerance for expressive conduct with the need for order in our schools. The test in Tinker—whether student speech reasonably “forecast[s] substantial disruption of or material interference with school activities,” 393 U.S. at 514—is the law we applied en banc, and it no doubt works here to rule in B.L.‘s favor. Why go further until it is needed?