THE UBIQUITY OF SOCIAL MEDIA DICTATES THE RESULT: WHY THE SUPREME COURT SHOULD AFFIRM THE THIRD CIRCUIT IN MAHANOY AREA SCHOOL DISTRICT V. B.L. AS A MATTER OF NON-DISCRIMINATION

By: Miriam Solomon, Volume 105 Staff Member

 In B.L. v. Mahanoy Area School District, the plaintiff, a sophomore in high school, was removed from the school cheerleading team after the team coaches learned of a post B.L. made on Snapchat.

After participating on the school’s junior varsity cheerleading team during her freshman year, B.L. tried out again her sophomore year, hoping to make the varsity team. Instead, she was once again placed on the junior varsity team.[1] She turned to Snapchat to express her disappointment where she posted a photo of herself and some friends outside of a local store with middle fingers raised. The caption read, “Fuck school fuck softball fuck cheer fuck everything.”[2]

After word of the post reached her cheerleading coaches, the coaches asserted B.L.’s conduct violated cheerleading rules requiring team members to respect each other, their coaches, and the school. The rules also called for cheerleaders to “avoid foul language and inappropriate gestures,” and not talk negatively about anyone in the cheerleading program on the internet.[3] They also considered her post a violation of a school rule requiring student athletes to behave in a way that would not reflect negatively on the school district.[4] The coaches removed B.L. from the cheerleading team for the remainder of the school year.[5] B.L. sued the district alleging, among other claims, that her removal from the team was a violation of her First Amendment rights.[6]

The District Court for the Middle District of Pennsylvania held for B.L. and the Third Circuit affirmed.[7] In January, the Supreme Court granted the school district’s petition for certiorari.[8] This Post argues that the Supreme Court should affirm the Third Circuit’s holding because not only is the Third Circuit’s analysis of governing precedent sound, but protecting student expression on social media may also help prevent furthering preexisting racial discrepancies in school discipline.

I. TEEN SOCIAL MEDIA USE AND RACIAL DISPARITIES IN SCHOOL DISCIPLINE

Today, social media usage is seemingly ubiquitous; among adults in the United States, sixty-nine percent use Facebook.[9] Among teenagers, Facebook is less popular.[10] Instead, teens gravitate toward YouTube, Instagram, and Snapchat.[11] Ninety-five percent of teens report having access to a smartphone and “[s]martphone ownership is nearly universal among teens of different genders, races and ethnicities and socioeconomic backgrounds.”[12] While smartphone access is nearly universal, frequency of usage of specific social media platforms does vary by demographic, with White teens more likely to list Snapchat as their most oft-used platform, and Black teens naming Facebook instead.[13] These platforms offer teenagers the opportunity to connect with family and friends and seek out news and information, in addition to providing a platform for self-expression.[14]

These demographic differences in social media usage may ultimately become more problematic given the already-existing disparity in school disciplinary measures based on race. Black and Latino students face harsher disciplinary measures than White students, something that is not only an education issue, but a civil rights issue.[15] Research shows that racial minorities, including Black, Hispanic, and American Indian students, are more likely to be sent to an administrator’s office for discipline than are White or Asian American students.[16] The same research study showed that Black, Hispanic, and American Indian students are significantly more likely to be removed from school, either by suspension or expulsion.[17] While the racial disparity for less serious disciplinary measures, like office visits, is not as numerically significant, research shows that “the reasons that Black and White youth were sent to the office were different, with Black students being sent to the office for more subjective reasons like ‘disrespect’ and ‘perceived threat,’ while White students [being sent] for more objective reasons that included smoking, vandalism, and leaving school without permission.”[18]

II. THIRD CIRCUIT’S ANALYSIS OF GOVERNING SCHOOL SPEECH LAW IS SOUND AND THE SUPREME COURT SHOULD AFFIRM

Given social media’s prominence among teenagers, it is no surprise that social media expression would eventually bump up against First Amendment protection in schools. Longstanding student speech precedent, Tinker v. Des Moines Independent Community School District, has served as a foundation for the presumption that while schools may limit student speech under certain circumstances, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[19] Nonetheless, the Court has never decided whether a school’s ability to limit student speech extends to off-campus social media speech.[20] This is a particularly prescient question today, given teens’ widespread social media usage and the possibility that social media posts and messages may spread false information, perpetuate bullying, or otherwise cause major disruptions in a school community.[21]

In Tinker, students were suspended after wearing black arm bands to school as a silent message of protest against the Vietnam War.[22] The Court acknowledged that schools are important tools in the development of interpersonal communication and that therefore students’ speech rights, extend beyond the classroom, to the cafeteria, athletic fields, or on the school’s campus grounds.[23] “[Students] may express [their] opinions, even on controversial subjects . . . if [they] do[] so without materially or substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with others.”[24] Important in the Court’s assessment was that the record in Tinker did not indicate that a disruption arising from the armbands was foreseeable or that the school did, in fact, “forecast [a] material interference.”[25] Thus, Tinker sought to balance students’ constitutionally protected speech rights with the school’s limited special authority to regulate student conduct to avoid substantial disruptions.

Given Tinker’s silence about whether its dictates extend beyond a school’s broad “campus,”[26] the Third Circuit decided this question when considering B.L.’s case. Detailing how other circuit courts[27] have ruled, the Third Circuit emphasized that each has allowed for broader regulation of student speech than Tinker’s holding mandates.[28] The Third Circuit noted that Tinker’s focus on potential disruption only really makes sense on campus, highlighting that any negative effects of off-campus speech will rely on individuals’ reactions to that speech.[29] Thus, the Third Circuit concluded that Tinker’s ambit did not extend off-campus and B.L.’s speech was protected in full by the First Amendment.[30] Because this interpretation holds tightly to Tinker’s original mandate, the Supreme Court should affirm the Third Circuit’s holding.

III. PROTECTING OFF-CAMPUS SOCIAL MEDIA SPEECH MAY HELP PREVENT FURTHER RACIAL DISPARITIES IN SCHOOL DISCIPLINE

The Third Circuit’s sound reasoning is further bolstered by the fact that this holding also may help prevent exacerbating the pre-existing problem of racial disparities in school discipline.

The fact that social media usage varies by demographic is important, considering what the statistics show about school discipline across racial groups. If schools begin to monitor students’ off-campus social media usage, it follows that discipline for social media infractions could result in the same racial discrepancies cited above. This may be particularly dangerous because much of social media is subjective; it is difficult to read someone’s tone of voice, and much can be misinterpreted or otherwise lost in translation without proper context. This subjectivity may result in school administrators interpreting Black students’ posts as similarly “disrespectful” or “threatening” as those behaviors that resulted in office visits.

Furthermore, the racial disparities between usage of specific platforms may further compound this problem. If administrators focus too heavily on one platform over another, one demographic group may bear an outsized brunt of the discipline flowing from social media infractions. A focus on Facebook would result in over-punishment of Black students.[31] If school administrators first turn to monitoring what they know (Facebook), they may very well end up disciplining Black students much more often than White students, intensifying the disparities that already plague school discipline.

Protecting student speech on social media platforms thus fulfills two important functions. First, it ensures students continue to enjoy broad First Amendment protection. This comports with Tinker’s long-respected holding. Second, it helps ensure more equity in the school setting where equity remains elusive.[32] Mahanoy Area School District provides the Court the opportunity to meet both goals in one decision. Respecting student speech helps uphold Tinker’s balancing test, which acknowledges the importance of protecting student speech. Moreover, Tinker balancing does not change based on the race of a student; neither should school discipline change based on race. Racial disparities in school discipline are both unjust and avoidable. In pursuit of educational equity, the Supreme Court should affirm the Third Circuit’s holding.

 

[1] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 175 (3d Cir. 2020).

[2] Id.

[3] Id. at 176 (internal quotation marks and alterations omitted).

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 176, 194.

[8] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020), cert. granted, 2021 WL 7725, (U.S. Jan. 8, 2021) (No. 20-255).

[9] John Gramlich, 10 Facts about Americans and Facebook, Pew Research Ctr. (May 16, 2019), https://www.pewresearch.org/fact-tank/2019/05/16/facts-about-americans-and-facebook/ [https://perma.cc/S59X-VMRT].

[10] Id. (noting that only half of U.S. teenagers use Facebook).

[11] Id. (noting that 85% of teens use YouTube, 72% use Instagram, and 69% use Snapchat).

[12] Monica Anderson & Jingjing Jiang, Teens, Social Media & Technology 2018, Pew Research Ctr. (May 31, 2018) https://www.pewresearch.org/internet/2018/05/31/teens-social-media-technology-2018/ [https://perma.cc/GJR9-BBP3]. 45% of teens report being online almost constantly. Id.

[13] Id.

[14] Id.

[15] Constance A. Lindsay & Cassandra M. D. Hart, Teacher Race and School Discipline, Education Next (Nov. 1, 2016) https://www.educationnext.org/teacher-race-and-school-discipline-suspensions-research/ [https://perma.cc/F4F6-PQRY].

[16] John M. Wallace, Jr., Sara Goodkind, Cynthia M. Wallace, & Jerald Bachman, Racial, Ethnic, and Gender Differences in School Discipline Among U.S. High School Students: 1991-2005, 59 Negro Educ. Rev. 47 (2008).

[17] Id.

[18] Id. (citing Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo, & Reece L. Peterson, The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urban Rev. 317 (2002)).

[19] Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503, 506 (1969).

[20] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 179 (3d Cir. 2020).

[21] Social Media and School Crises, Nat’l Assoc. of Sch. Psychs., https://www.nasponline.org/resources-and-publications/resources-and-podcasts/school-climate-safety-and-crisis/media-and-social-media-resources/social-media-and-school-crises [https://perma.cc/TEF8-CS54] (last visited Jan. 13, 2021).

[22] Tinker, 393 U.S. at 503.

[23] Id. at 512–13.

[24] Id.

[25] Id. at 514.

[26] The campus includes the classroom, the athletic fields, and the more general schoolgrounds. See id. at 512–13.

[27] B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 186 (3d Cir. 2020) (detailing reasoning from the Second, Eighth, Fourth, Fifth, and Ninth Circuits).

[28] Id. at 188–89.

[29] Id. at 189 (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986)).

[30] Id. at 189.

[31] See supra text accompanying notes 12–14.

[32] See Equity of Opportunity, U.S. Dept. of Educ., https://www.ed.gov/equity [https://perma.cc/W4YX-QSG2] (last visited Jan. 15, 2021).