In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the U.S. Supreme Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” On June 23, 2021, in Mahanoy Area School District v. B.L., 2021 WL 2557069 (U.S. 2021), in an 8-1 decision authored by Justice Steven Breyer, the Supreme Court made clear that the special interest of schools in regulating student speech is not shed when students step outside the schoolhouse gates. The potentially conflicting interests of schools and their students are to be balanced on both sides of the gate, while the bar appears decidedly higher for schools in the off-campus setting.

In Mahanoy, the court affirmed the order of the U.S. Court of Appeals for the Third Circuit, albeit for reasons other than those advanced by that court, determining that the school violated the student’s First Amendment rights by imposing disciplinary action for the posting of vulgarities on social media while off-campus, after school hours and without using school resources.

Underlying Facts