What is Protected Political Speech for Students?

Was student conduct protected political speech or was it a substantial disruption?

This issue was discussed in Mahanoy Area Sch. Dist. v. B. L., 141 S.Ct. 2038, 210 L.Ed.2d 403 (2021). In this case the Court applied the Tinker Standard to the facts in Manahoy. An interesting excerpt follows,

"Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of "substantial disruption" of a school activity or a threatened harm to the rights of others that might justify the school's action. Tinker , 393 U.S., at 514, 89 S.Ct. 733. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra

[141 S.Ct. 2048] class "for just a couple of days" and that some members of the cheerleading team were "upset" about the content of B.L.'s Snapchats. App. 82-83. But when one of B. L.'s coaches was asked directly if she had "any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking ….. about it," she responded simply, "No." Id., at 84. As we said in Tinker, "for the State in the person of school officials to justify prohibition of a particular expression of opinion, it 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." 393 U.S., at 509, 89 S.Ct. 733.

The alleged disturbance here does not meet Tinker's demanding standard.

Third, the school presented some evidence that expresses (at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B. L., not because of any specific negative impact upon a particular member of the school community, but "based on the fact that there was negativity put out there that could impact students in the school." App. 81. There is little else, however, that suggests any serious decline in team morale to the point where it could create a substantial interference in, or disruption of, the school's efforts to maintain team cohesion. As we have previously said, simple

"undifferentiated fear or apprehension... is not enough to overcome the right to freedom of expression." Tinker, 393 U.S., at 508, 89 S.Ct. 733.

It might be tempting to dismiss B. L.'s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.

See Tyson & Brother v. Banton, 273 U.S. 418, 447, 47 S.Ct. 426, 71

L.Ed. 718 (1927) (Holmes, J., dissenting). "We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated." Cohen, 403 U.S., at 25, 91 S.Ct. 1780.”

Do you have a question about an incident of school discipline (expulsion, suspension, etc.) that may implicate protected political speech? Schedule a confidential consultation and let’s discuss.

Manahoy Area Sch. Dist. v. B. L., 141 S.Ct. 2038, 210 L.Ed.2d 403 (2021)