A Snapchat Post, a Cheer Squad and the Limits of School Power

Nine of the most credentialed legal minds in the land, in black robes, beneath a marble pediment, gave their attention to a Snapchat story that was designed to vanish in twenty-four hours. It had a photo of two teenagers holding up their middle fingers and a caption I will not reproduce on a family website. The Supreme Court of the United States had to decide whether the principal could punish it.

Folks, you cannot make this up, and I would not want to. Because underneath the comedy of it sits one of the most important questions a parent can ask: where does the school's authority over my child end? The Court's answer, in Mahanoy Area School District v. B.L. (2021), deserves a standing ovation from every conservative who ever worried about the government reaching into the home.

Here is the case, told straight, and then the argument for why it matters.

The facts, in neutral terms

The case began in 2017 in Mahanoy City, Pennsylvania. B.L. was a high school student, a rising sophomore, who tried out for the varsity cheerleading squad. She did not make varsity. She was offered a place on the junior varsity squad, and she was unhappy about it.

On a weekend, away from school, at a local convenience store, she used Snapchat to post an image of herself and a friend with their middle fingers raised. The caption used profanity to express her frustration with school, softball, cheer and "everything." The post was one of Snapchat's temporary stories, and it was visible to a few hundred of her contacts. Some of them took screenshots, and the screenshots reached the cheerleading coaches.

The coaches decided the post violated team and school rules about respect and about negative speech toward the program. They suspended B.L. from the junior varsity squad for the following year. She and her parents appealed within the school system and lost, and they sued in federal court. The district court ruled for B.L. The Third Circuit affirmed, holding that the standard from Tinker v. Des Moines (1969) does not apply to off-campus speech at all. The school district asked the Supreme Court to take the case, and the Court did.

A couple of details are worth underlining, because they are what made the case so clean. The post was made off campus. It was made outside school hours and without school equipment. It did not name a teacher or student. It did not threaten anyone. It was vulgar, and it was sophomoric in the literal sense. And the punishment was not a lecture; it cost a student a year on a team.

The question

The question was whether a public school can discipline a student for speech made off campus. Put more precisely: does Tinker, which let schools restrict on-campus speech that "materially and substantially" disrupts school activities, reach a student's weekend posts?

That sounds technical. It is not. Think of what it asks. If the answer is yes, then the school's authority follows your child out the door, down the street, into the kitchen and onto the phone. If the answer is no, the school's authority ends at the schoolhouse gate, with exceptions for narrow, serious cases.

The holding

The Court ruled 8 to 1 for B.L. on June 23, 2021. Justice Breyer wrote the opinion. The Court did not adopt the Third Circuit's blanket rule that schools can never regulate off-campus speech. It held instead that the school's interest in regulating B.L.'s particular speech was not strong enough to justify the punishment.

The Court did something typical of a careful court. It declined to set a rule for every case and gave instead three features of off-campus speech that make the school's authority weaker.

1. The school is not the parent. Off-campus speech normally falls within the zone of parental, not school, responsibility. A school stands in loco parentis during the school day, but a child's evenings and weekends are a family's.
2. Stack the two together and the child never has a day off. If a school could regulate off-campus speech in the same way it regulates on-campus speech, a student would be subject to its rule twenty-four hours a day. The Court observed that this would leave a student with no space in which to speak without the school's supervision.
3. The school has an interest in protecting unpopular speech. Breyer wrote that "America's public schools are the nurseries of democracy." A nursery of democracy cannot be a place where the first lesson is that an unwelcome opinion gets you punished. The Court said schools have a strong interest in teaching students that free speech is a living principle.

The Court did not say schools may never regulate off-campus speech. It listed examples where the school's interest remains significant: serious bullying or harassment targeting particular individuals, threats aimed at teachers or other students, failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities, and breaches of school security devices. But on these facts, a vulgar complaint about a cheerleading placement, the interest was weak, and the punishment lost.

On the school's argument that the post was disruptive, the Court was unimpressed. The record showed some discussion in a class and some upset among cheerleaders, and the Court found that this fell far short of the substantial disruption that Tinker requires. A bit of gossip is not a disruption of education. If it were, no school would ever hold a class.

Justice Alito's concurrence

Justice Alito, joined by Justice Gorsuch, wrote separately, and I think the concurrence is worth a conservative's time because it is a different and more cautious route to the same result.

Alito agreed that the school could not punish B.L., but he warned against reading too much into the majority's reasoning. He made two points.

First, the idea that schools act in the place of parents, in loco parentis, is a doctrine of delegated parental authority, and it should be understood that way: parents delegate some of their authority to the school for the school day, and the delegation is not unlimited. On his reading, the school's authority matches the task parents entrust to it, which is a good reason to doubt that it reaches a child's weekend remarks.

Second, he observed that students who voluntarily join a team or other extracurricular activity may accept additional rules, and that a school may reasonably ask a student on a team to follow certain standards. But he also urged schools to proceed cautiously, since many off-campus regulations raise serious First Amendment concerns.

Justice Thomas's dissent

Justice Thomas was the sole dissenter, and he deserves an accurate description, because he made a serious historical argument.

Thomas argued that at the time of the Founding and through much of American history, schools had substantial authority over student conduct, including conduct off campus, when that conduct had a tendency to harm the school's order or the discipline of other students. He pointed to the in loco parentis tradition and to the common-law view of the schoolmaster's authority. In his reading, the Court had not given a convincing account of why that long tradition no longer applied, and it had set out a test, those three features, that left schools without clear guidance.

I disagree with the result he reached, but I admire the method. It asks a question that conservatives should always ask: what did the legal tradition say, and why did the Court depart from it? Two answers are available. One: the historical tradition he cites came from a world in which schools were small, local, and run by people who knew the parents, so the school and the family were on the same side. Two: the modern public school is a large government institution, often run at a distance from the families it serves, and the old assumption that its authority and the parents' authority point the same way is not guaranteed. The right response to a changed institution is a change in the limit.

A point-by-point rebuttal: the strongest objection

Let me state the strongest case for the school's position, in words its defenders would accept.

Schools are responsible for the safety and order of a community. A student's online speech can wound a classmate as surely as a hallway taunt, and a bully does not stop being a bully at 3 p.m. Cyberbullying drives real harm. If the school cannot reach it, the school cannot protect its students. And a cheerleading squad is a team that depends on morale and cooperation. A coach who cannot discipline a player for trashing the team in public cannot run the team.

That is a serious argument, and I answer it in four points.

1. The Court left the serious cases open. The opinion lists bullying, harassment and threats as areas in which schools keep authority. A student who targets a classmate online is still subject to discipline. The ruling protected a profane complaint, not a campaign of cruelty.
2. The line between "vulgar" and "harmful" is the line between a bad attitude and an injury. A teenager who is rude about the cheer program injured no one. Schools that cannot tell the difference will punish both, and the one they will punish more often is the kid who said something the administration disliked.
3. The team argument is a good one, and the Court did not foreclose it. Alito's concurrence leaves room for team rules that a student accepts when joining. What the majority would not allow was punishing this weekend post under a vague rule about negative speech.
4. The government does not get to define the permitted opinions of children. Even if the post was in poor taste, the answer to bad taste is a conversation with a parent. A school that punishes bad taste as such assumes a role that the Constitution, and common sense, assign to the family.

Why conservative parents should welcome the limit

A person might read this case and think it is a victory for teenage rudeness, and a conservative is not obliged to cheer teenage rudeness. But conservatives should welcome the limit for reasons that go to the heart of the movement.

It protects the family from the state. The oldest conservative instinct is that the family comes before the government, that children belong first to their parents, and that the state is a guest in the house. A school that can regulate a student's speech wherever that student is has erased the line between school and home. That is the sort of power a conservative should distrust no matter who holds it.

It protects conservative students. Picture the next decade of American schools, in which a student might post a Bible verse, a defense of the unborn, or a criticism of a school policy on a Saturday afternoon. If the school can punish "negative" speech off campus, which students will be punished first? The answer depends on who runs the school board, and the board changes. The rule that protects B.L.'s profanity also protects a student's sincere witness. The rule is the same, and a conservative should want it applied evenly.

It forces schools to be precise. The case rewards the schools that write specific rules about specific harms and punishes the ones that lean on vague claims of "disruption." That is better government.

It is a reminder about who the schools are for. Parents are not customers of the school. They are the people to whom the child belongs. For a closer look at the larger idea, see Should Schools Tell Parents? The Case for Notification Policies, which takes up what schools owe the family.

The constitutional anchor

Tinker is where the schoolhouse line began. In 1969 the Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The case involved students who wore black armbands to protest the Vietnam War. The Court allowed a school to restrict speech that would "materially and substantially" disrupt the work of the school, but not mere discomfort. I told that story in Tinker v. Des Moines and the Armbands That Protect Conservative Students Too, and Mahanoy is its natural sequel. Tinker says the gate is the line for speech the school can regulate; Mahanoy says that what happens beyond the gate is, presumptively, the family's business.

The Court had earlier trimmed student rights in cases about lewd speech at a school assembly, school-sponsored newspapers, and speech promoting drug use at a school-supervised event. All of those cases involved speech at school or at a school event. That is the key to Mahanoy: the Court was not asked to wipe away those limits, only to decide whether they extended past the gate. It declined to extend them casually. For the larger question of who writes the rules inside the gate, see Who Actually Runs Your School District, Board, Superintendent or State.

There is also a Founding thread here. The Declaration of Independence names, among its grievances, that the King "has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance." I do not want to stretch a point: a school principal is not George III, and a cheer coach is not a swarm. But the principle that government power should be bounded, and that its reach should stop at the doorstep of the home, is exactly the principle of the Fourth and Ninth and Tenth Amendments and the whole structure of limited government.

What parents can do

This is general information, not legal advice about any particular family.

• Read the student handbook. Find out whether it says anything about off-campus or online conduct, and exactly what it says.
• Ask how the district defines disruption. A rule that is specific is better than one that says "conduct unbecoming."
• Talk with your child about the post before the school does. The best answer to a teenager's bad judgment online is a parent, not an administrator.
• If your child is disciplined for speech outside school, ask for the rule in writing and the evidence. Keep the record.
• Know the limits of the case. Mahanoy does not protect threats, harassment of a particular person, or breaches of school rules for online school activities.

The case in brief

1. In Mahanoy Area School District v. B.L. (2021), the Supreme Court held 8 to 1 that a school could not punish a student for a profane Snapchat post made off campus, on a weekend, about the cheerleading squad.
2. Justice Breyer gave three features of off-campus speech: it falls within the family's zone of responsibility, school regulation would leave a student no time off, and schools have an interest in protecting unpopular speech.
3. Justice Alito, joined by Justice Gorsuch, stressed that in loco parentis is delegated parental authority and that students who volunteer for a team may be bound by extra rules, though schools should proceed cautiously.
4. Justice Thomas dissented, arguing that history gave schools wide authority over student conduct, a serious argument that the majority did not answer to his satisfaction.
5. Conservative parents should welcome the limit because it keeps the state out of the home, protects every student's views and forces schools to write precise rules.

What you can do: this week, find your district's student handbook, read what it says about off-campus and online speech, and bring any vague wording to the school board's attention.