I hope this finds you well. After reading and analyzing the majority and concurring opinions of Mahanoy Area School District v. B.L., I want to reflect on and report my findings in this memorandum. I will outline the opinions addressed in the precedence case as well as apply those opinions and arguments to the case at hand to determine whether the school can suspend M. W. or whether doing so would be an infringement of her right to free speech. The issues I will address in my analysis are as follows:
- Features of speech protected by the First Amendment
- Framework to regulate off-campus speeches applied to the case
- Different statements by M. W. compel a different reaction
Facts
M. W., a high school senior on the women’s basketball team has appeared in each of the three previous seasons and is the headliner of the program. The team hasn’t performed well in the past but has been progressively improving mainly because of M. W.’s abilities. Over Labor Day Weekend, M. W. attended a party at another student’s house. During the party, M. W. was asked about the team’s chances, and someone at the party recorded M. W.’s response on a smartphone. The recording was extensively distributed at school and even in the whole community. As a response, the principal of her school investigated to determine the impact of M. W.’s comments on the team and school—he concluded that M. W. should be suspended from the basketball team. The principal made this decision based on her belief that M. W.’s continued participation on the team would be a distraction to the rest of the team and the school. The players are worried about the difficulties of continuing to play with M.W. while simultaneously following the instructions of Coach Knight. However, they agreed that Coach Knight wasn’t a competent coach, and many of his plays made no sense. Allowing M. W. to play will be interpreted as agreeing with M. W.’s opinions about Coach Knight. Teachers reported that students are asking during class their thoughts on M. W.’s comments, and are worried it will distract students. Lastly, Coach Knight also teaches history, and allowing M. W. to play will be disrespectful to him in his job.
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Features of speech protected by the First Amendment
B. L. attended Mahanoy Area High School, a public school in Pennsylvania. Toward the end of her first year, B. L. tried out for the varsity cheerleading squad and a softball team. She did not make the varsity cheerleading team or obtain the softball position she desired. B. L. then went to a neighborhood convenience store where she used her phone to post on Snapchat, a social media platform that allows users to upload photographs and videos that vanish after a set period. The first post showed B. L. and her friend with their middle fingers raised along with the text: “Fuck school fuck softball fuck cheer fuck everything.” The second post says: “Love how me and [another student] get told we need a year of JV before we make varsity but tha[t] doesn’t matter to anyone else?” B. L.'s Snapchat friends took screenshots of B. L.'s posts and shared them with other people on the cheering team, quickly spreading the photographs across campus. After consulting with the school principal, the coaches concluded that the posts violated team and school rules because they utilized profanity while addressing a school extracurricular activity. As a result, B. L. has been suspended from the junior varsity cheering team for the coming season. The school’s athletic director, principal, superintendent, and school board unanimously affirmed B. L.’s suspension. B.L. and her parents responded to the school by filing a case in the Federal District Court, where the judges determined that the school’s punishment violated B.L.’s protection under the First Amendment and reversed the school’s decision.
The majority opinion in Mahanoy highlights three features of off-campus speech that limit the leeway schools receive from students’ First Amendment rights. The leeway schools receive derives from the doctrine of loco parentis, which treats school administrators as standing in the place of students’ parents to protect, guide, and discipline the students. The first feature is that off-campus speech is seldom in loco parentis and is usually the duty of the parent rather than the school. Another feature is the ability to regulate both on-campus and off-campus speech would equates to all the words the student speaks in a day. This is especially true for political or religious discourse that happens outside of school and makes school involvement harder to justify. Finally, the school must defend a student's unpopular expression, particularly off campus, because popular beliefs require less protection. Unpopular ideas must be protected if democracy and the 'marketplace of ideas' are to flourish.
Given that B.L.'s speech represented an unpopular opinion that criticized the team, the team's coaches, and the school. She criticized the rules of the community she is a part of. According to the majority opinion, if B. L. were an adult, her speech would be strongly protected under the First Amendment, where her posts appeared outside of school hours from an outside location of the school. She did not name the school in her speech nor did she use vulgar or abusive language to attack any member of the school community. Furthermore, B. L. also used a personal cellphone, to address a personal audience consisting of her private Snapchat friends. The school therefore should have a hard time controlling and regulating B.L.’s speech.
To relate to the current case with M. W., she also criticized the coach and the school. Much like B.L., M. W. expressed her criticism during Labor Day weekend, during which loco parentis does not apply, since it is before school even started. The responsibility for her speech falls on her parents, not the school, which applies the first feature. M. W. also spoke off campus, which applies the second feature because regulating her off-campus speech coupled with on-campus speech means the student is constantly deprived of her First Amendment right. M. W. expressed her opinion about the coach and school, although teammates and teachers may be agreeing with her in private, no one expressed her opinion out loud and in public. In this case, her opinion would be considered unpopular and deserves protection from the school and the First Amendment. M. W. was meant to be private, whereas B.L. had her story taken without her knowledge, M. W.’s conversation was also recorded and distributed without her knowledge. Applying the third feature is not as a robust argument as the other two features as different from B.L., M. W. named Coach Knight by name and used abusive language against him.
Framework to regulate off campus-speech applied to the case
In addition to the majority opinion, the concurring opinion, written by Justice Alito and joined by Justice Gorsuch, establishes a framework for analyzing off-campus speech. The concurring opinion agrees with the majority that off-campus jurisdiction to restrict a student's speech should be more limited than on-campus authority, meaning the doctrine of loco parentis should seldom apply to off-campus speech. Public school students have the right to voice unpopular thoughts on public issues, even if those ideas are expressed in vulgar or harmful language as seen in Mahanoy. Freedom of speech, even the unpopular ones, is essential to democracy. Speech that is not expressly directed at the school, school administration, instructors, or fellow students and concerns topics of public importance, including sensitive topics, is particularly protected by the First Amendment.
According to the concurring judgment, if B. L. had attended a private school, the Commonwealth of Pennsylvania would have no legal basis to penalize her. While schools do need to regulate student’s speech for the teachers to teach effectively and the students to learn effectively. To have an effective learning atmosphere in school, students cannot mistreat or disrespect the teachers. The schools must have the authority to protect students and to prohibit threatening and harassing speech. However, there exist limitations. When a public school regulates students’ speech when they are not on school grounds or participating in a school program, it must be done with the consent of the parent on behalf of the child; that is the basis for regulating off-campus speech. In public schools, parents are treated as having relinquished the amount of authority that the schools must be able to have to carry out their main purpose of education, as well as the authority to perform any other functions the parents agree to.
Outside of school, the authority to regulate speech is severely limited, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and accusations among students. In M. W.’s case, the school authority argued if she goes unpunished, the team, the school, and the community could interpret it as agreeing with what M. W. said about Coach Knight, causing controversy. But is it unreasonable to justify that speech should be suppressed only because it expresses ideas that are offensive or disagreeable since those speeches are what the First Amendment protects the most? An area in which schools have no authority over speech involves statements that criticize school administrators, teachers, or other staff members. In M. W.’s case, she criticizes and calls out Coach Knight by name. Schools could claim that parents who send their children to a public school implicitly authorize the school to demand respect from the students to the teachers and staff. The principal reasoned that since Coach Knight is also a history teacher, he cannot let a student get away with using crude language toward the Coach. Yet, parents do not relinquish their children’s ability to appropriately complain about wrongdoing, dereliction, or even plain incompetence. In this case, the evidence from students, coaches, and teachers suggests that what M. W. said about Coach Knight contains a degree of truth, despite the crude language. In this case, it is appropriate to take into account the incompetence of the Coach. In Mahanoy, the school did not claim that the news caused any significant disruption of classes. Speech that does not interfere with class cannot be suppressed unless it causes a serious disruption or violation of rights. In this present case, several teachers worry that allowing M. W. to play will continue to distract students, since after every game the students will want to discuss whether a win or loss is because of M. W. or Coach Knight. Although M. W.’s caused distractions in class, it would not be considered a “substantial disorder or invasion of rights”, and therefore cannot be suppressed. In terms of team morale, the coach might consider group cohesion and morale while selecting players, assigning positions, and allocating playing time. M. W.'s teammates voiced concern about the difficulties of continuing to play with her and following her example while simultaneously obeying Coach Knight's instructions. This would be a legitimate justification for Coach Knight to suspend M. W. since she would be a diversion from his instructions. This decision would have to be made by the coach rather than the principal. However, there would be counter-arguments because the team admitted that they agreed with M. W. that Coach Knight was not a competent coach. In Mahanoy, the school did not consider B. L.'s messages when assessing whether her attitude would allow her to be effective in cheering; instead, the school just punished her. In M. W.’s case, the school admitted that punishing her would most likely result in a losing season since M. W. is the star player. Instead of deciding whether her comment would make her effective in basketball, the school chose to signal to have the teachers’ and coaches’ backs. Based on Mahanoy, M. W. should receive no punishment from the school authority. If there were to be repercussions from her comments, it would have to come from the Coach, with the specific reason that M. W. and her criticism disrupted his instructions in the game.
Different statements by M. W. compel different reactions
Different remarks made by M.W. deserves a different outcome since some statements are more damning than others. The harsher statements could have more ground for the school to dish out punishment while others are well protected by the First Amendment. I divided her statements into groups and analyzed each category below:
“We’ll do fine if our f*)#@ g idiot coach will get out of our way.”
“I can’t believe that Knight [the team’s coach] hasn’t been fired. He must know someone or have dirty pictures. The last time he attended a coaching clinic, Jordan was playing for Dean Smith.”
These two statements are the only potentially problematic things said by M. W., as she mentions Coach Knight by name and uses vulgar language. If the statements were made on school grounds, it would be within the school’s authority to regulate since it comes under “indecent, lewd, or vulgar speech uttered during a school assembly on school grounds”. In B. L.’s case, the school does not claim that it possesses the authority to always regulate the vocabulary of all its students during the day and every day of the year, so B. L. could not be punished for her language outside of school; the same would apply in this case. It is also unreasonable to assume that M. W.’s parents gave the school authority to regulate her speech outside of school premises.
“Seriously, the school must not care about women’s basketball, or it would hire a capable coach. It wouldn’t tolerate losing season after losing season in any of the men’s sports.”
This is a valid complaint without vulgar language, it criticizes the actions of the school to not hire a new coach. This sentence does not single anyone out and is an unpopular opinion. This speech is exactly what the First Amendment aims to protect.
“All the other coaches know Knight’s a joke. They tell me they can’t imagine how we deal with him.”
This statement is simply something M. W. heard from the other coaches; she does not criticize but only passes along information to her.
“I think the rest of the team is smart enough not to pay any attention to the plays Knight calls. They should attend practice and pretend to listen to him but ignore anything he says during a game. He doesn’t know what he’s doing.”
This statement is very much like the first two statements but without the vulgar language and crude remarks. The statement only points out, perhaps rightfully, the incompetence of the Coach, therefore falls under the protection of the First Amendment.
Conclusion
The three features in the majority opinion as well as the framework articulated in the concurring opinion all limit the First Amendment leeway that schools receive outside of school grounds and activities. However, it is explicitly stated in both opinions that there would not be a clear and overreaching ruling, therefor meaning following cases must be determined given the individual facts and circumstances. Mahanoy serves as a precedent case of M. W., and the reasoning for Mahanoy could also be applied to this case, meaning the First Amendment’s Protection of Free Speech would similarly apply here. The school did not have the authority to regulate M. W.’s speech and therefore no reason to suspend her from the team. Nevertheless, as I stated previously, Coach Knight could claim to have the authority to not have her on the team based on the claim that she distracting from the coach’s calls. Though, given the fact that M. W. is the star player and the reason the basketball team is doing well, that argument is not robust.
Bibliography
- UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. MAHANOY AREA SCHOOL DISTRICT, PETITIONER v. B. L., A MINOR. 23 June 2021.
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