B.L. v. Mahanoy Area Sch. Dist.

Decision Date30 June 2020
Docket NumberNo. 19-1842,19-1842
Citation964 F.3d 170
Parties B.L., a minor, BY AND THROUGH her father Lawrence LEVY and her mother Betty Lou Levy v. MAHANOY AREA SCHOOL DISTRICT, Appellant
CourtU.S. Court of Appeals — Third Circuit

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.


B.L. is a student at Mahanoy Area High School (MAHS). As a rising freshman, she tried out for cheerleading and made junior varsity. The next year, she was again placed on JV. To add insult to injury, an incoming freshman made the varsity team.

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, who, it turned out, was already in the know: "Several students, both cheerleaders and non-cheerleaders," had approached her, "visibly upset," to "express their concerns that [B.L.’s] [s]naps were inappropriate." J.A. 7 (citations omitted).

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 42 U.S.C. § 1983 : that her suspension from the team violated the First Amendment; that the school and team rules she was said to have broken are overbroad and viewpoint discriminatory; and that those rules are unconstitutionally vague.

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 team implicated the First Amendment even though extracurricular participation is merely a privilege. Turning to the merits, the Court ruled that B.L.’s snap was off-campus speech and thus not subject to regulation under Bethel School District No. 403 v. Fraser , 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). And, finding that B.L.’s snap had not caused any actual or foreseeable substantial disruption of the school environment, the Court ruled her snap was also not subject to discipline under Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Court therefore concluded that the School District had violated B.L.’s First Amendment rights, rendering unnecessary any consideration of her overbreadth, viewpoint discrimination, or vagueness claims. It entered judgment in B.L.’s favor, awarding nominal damages and requiring the school to expunge her disciplinary record. This appeal followed.


The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. Over time, those deceptively simple words have spun off a complex doctrinal web. The briefs here are a testament to that complexity, citing a wealth of cases involving not only student speech but also public employee speech, obscenity, indecency, and many other doctrines.

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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). And the free speech rights of minors are subject to "scrupulous protection," lest we "strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Id.

In Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (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, 89 S.Ct. 733. 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, 89 S.Ct. 733. Without "a specific showing of constitutionally valid reasons to regulate their speech," then, "students are entitled to freedom of expression," id. at 511, 89 S.Ct. 733, 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, 89 S.Ct. 733. 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, 89 S.Ct. 733. So as part of their obligation "to prescribe and control conduct in the schools," id. at 507, 89 S.Ct. 733, 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, 89 S.Ct. 733 (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 accompany an unpopular viewpoint" and more than "undifferentiated fear or apprehension of disturbance." Id. at 508–09, 89 S.Ct. 733.

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...

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