Mahanoy Area School Dist. v. B. L. ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MAHANOY AREA SCHOOL DISTRICT v. B. L., A MINOR,
BY AND THROUGH HER FATHER, LEVY, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 20–255. Argued April 28, 2021—Decided June 23, 2021
Mahanoy Area High School student B. L. failed to make the school’s var-
sity cheerleading squad. While visiting a local convenience store over
the weekend, B. L. posted two images on Snapchat, a social media ap-
plication for smartphones that allows users to share temporary images
with selected friends. B. L.’s posts expressed frustration with the
school and the school’s cheerleading squad, and one contained vulgar
language and gestures. When school officials learned of the posts, they
suspended B. L. from the junior varsity cheerleading squad for the up-
coming year. After unsuccessfully seeking to reverse that punishment,
B. L. and her parents sought relief in federal court, arguing inter alia
that punishing B. L. for her speech violated the First Amendment. The
District Court granted an injunction ordering the school to reinstate
B. L. to the cheerleading team. Relying on Tinker v. Des Moines Inde-
pendent Community School Dist., 393 U. S. 503, to grant B. L.’s subse-
quent motion for summary judgment, the District Court found that
B. L.’s punishment violated the First Amendment because her Snap-
chat posts had not caused substantial disruption at the school. The
Third Circuit affirmed the judgment, but the panel majority reasoned
that Tinker did not apply because schools had no special license to reg-
ulate student speech occurring off campus.
Held: While public schools may have a special interest in regulating
some off-campus student speech, the special interests offered by the
school are not sufficient to overcome B. L.’s interest in free expression
in this case. Pp. 4–11.
(a) In Tinker, we indicated that schools have a special interest in
regulating on-campus student speech that “materially disrupts class-
2 MAHANOY AREA SCHOOL DIST. v. B. L.
Syllabus
work or involves substantial disorder or invasion of the rights of oth-
ers.” 393 U. S., at 513. The special characteristics that give schools
additional license to regulate student speech do not always disappear
when that speech takes place off campus. Circumstances that may
implicate a school’s regulatory interests include serious or severe bul-
lying or harassment targeting particular individuals; threats aimed at
teachers or other students; the failure to follow rules concerning les-
sons, the writing of papers, the use of computers, or participation in
other online school activities; and breaches of school security devices.
Pp. 4–6.
(b) But three features of off-campus speech often, even if not always,
distinguish schools’ efforts to regulate off-campus speech. First, a
school will rarely stand in loco parentis when a student speaks off cam-
pus. Second, from the student speaker’s perspective, regulations of off-
campus speech, when coupled with regulations of on-campus speech,
include all the speech a student utters during the full 24-hour day.
That means courts must be more skeptical of a school’s efforts to regu-
late off-campus speech, for doing so may mean the student cannot en-
gage in that kind of speech at all. Third, the school itself has an inter-
est in protecting a student’s unpopular expression, especially when the
expression takes place off campus, because America’s public schools
are the nurseries of democracy. Taken together, these three features
of much off-campus speech mean that the leeway the First Amendment
grants to schools in light of their special characteristics is diminished.
Pp. 6–8.
(c) The school violated B. L.’s First Amendment rights when it sus-
pended her from the junior varsity cheerleading squad. Pp. 8–11.
(1) B. L.’s posts are entitled to First Amendment protection. The
statements made in B. L.’s Snapchats reflect criticism of the rules of a
community of which B. L. forms a part. And B. L.’s message did not
involve features that would place it outside the First Amendment’s or-
dinary protection. Pp. 8–9.
(2) The circumstances of B. L.’s speech diminish the school’s inter-
est in regulation. B. L.’s posts appeared outside of school hours from
a location outside the school. She did not identify the school in her
posts or target any member of the school community with vulgar or
abusive language. B. L. also transmitted her speech through a per-
sonal cellphone, to an audience consisting of her private circle of Snap-
chat friends. P. 9.
(3) The school’s interest in teaching good manners and conse-
quently in punishing the use of vulgar language aimed at part of the
school community is weakened considerably by the fact that B. L.
spoke outside the school on her own time. B. L. spoke under circum-
Cite as: 594 U. S. ____ (2021) 3
Syllabus
stances where the school did not stand in loco parentis. And the vul-
garity in B. L.’s posts encompassed a message of criticism. In addition,
the school has presented no evidence of any general effort to prevent
students from using vulgarity outside the classroom. Pp. 9–10.
(4) The school’s interest in preventing disruption is not supported
by the record, which shows that discussion of the matter took, at most,
5 to 10 minutes of an Algebra class “for just a couple of days” and that
some members of the cheerleading team were “upset” about the con-
tent of B. L.’s Snapchats. App. 82–83. This alone does not satisfy
Tinker’s demanding standards. Pp. 10–11.
(5) Likewise, there is little to suggest a substantial interference
in, or disruption of, the school’s efforts to maintain cohesion on the
school cheerleading squad. P. 11.
964 F. 3d 170, affirmed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH and BARRETT, JJ.,
joined. ALITO, J., filed a concurring opinion, in which GORSUCH, J., joined.
THOMAS, J., filed a dissenting opinion.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–255
_________________
MAHANOY AREA SCHOOL DISTRICT, PETITIONER v.
B. L., A MINOR, BY AND THROUGH HER FATHER,
LAWRENCE LEVY AND HER MOTHER,
BETTY LOU LEVY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 23, 2021]
JUSTICE BREYER delivered the opinion of the Court.
A public high school student used, and transmitted to her
Snapchat friends, vulgar language and gestures criticizing
both the school and the school’s cheerleading team. The
student’s speech took place outside of school hours and
away from the school’s campus. In response, the school sus-
pended the student for a year from the cheerleading team.
We must decide whether the Court of Appeals for the Third
Circuit correctly held that the school’s decision violated the
First Amendment. Although we do not agree with the rea-
soning of the Third Circuit panel’s majority, we do agree
with its conclusion that the school’s disciplinary action vio-
lated the First Amendment.
I
A
B. L. (who, together with her parents, is a respondent in
this case) was a student at Mahanoy Area High School, a
public school in Mahanoy City, Pennsylvania. At the end of
her freshman year, B. L. tried out for a position on the
2 MAHANOY AREA SCHOOL DIST. v. B. L.
Opinion of the Court
school’s varsity cheerleading squad and for right fielder on
a private softball team. She did not make the varsity cheer-
leading team or get her preferred softball position, but she
was offered a spot on the cheerleading squad’s junior var-
sity team. B. L. did not accept the coach’s decision with
good grace, particularly because the squad coaches had
placed an entering freshman on the varsity team.
That weekend, B. L. and a friend visited the Cocoa Hut,
a local convenience store. There, B. L. used her smartphone
to post two photos on Snapchat, a social media application
that allows users to post photos and videos that disappear
after a set period of time. B. L. posted the images to her
Snapchat “story,” a feature of the application that allows
any person in the user’s “friend” group (B. L. had about 250
“friends”) to view the images for a 24 hour period.
The first image B. L. posted showed B. L. and a friend
with middle fingers raised; it bore the caption: “Fuck school
fuck softball fuck cheer fuck everything.” App. 20. The sec-
ond image was blank but for a caption, which read: “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?” The caption also contained an upside-down smiley-
face emoji. Id., at 21.
B. L.’s Snapchat “friends” included other Mahanoy Area
High School students, some of whom also belonged to the
cheerleading squad. At least one of them, using a separate
cellphone, took pictures of B. L.’s posts and shared them
with other members of the cheerleading squad. One of the
students who received these photos showed them to her
mother (who was a cheerleading squad coach), and the im-
ages spread. That week, several cheerleaders and other
students approached the cheerleading coaches “visibly up-
set” about B. L.’s posts. Id., at 83–84. Questions about the
posts persisted during an Algebra class taught by one of the
two coaches. Id., at 83.
After discussing the matter with the school principal, the
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
coaches decided that because the posts used profanity in
connection with a school extracurricular activity, they vio-
lated team and school rules. As a result, the coaches sus-
pended B. L. from the junior varsity cheerleading squad for
the upcoming year. B. L.’s subsequent apologies did not
move school officials. The school’s athletic director, princi-
pal, superintendent, and school board, all affirmed B. L.’s
suspension from the team. In response, B. L., together with
her parents, filed this lawsuit in Federal District Court.
B
The District Court found in B. L.’s favor. It first granted
a temporary restraining order and a preliminary injunction
ordering the school to reinstate B. L. to the cheerleading
team. In granting B. L.’s subsequent motion for summary
judgment, the District Court found that B. L.’s Snapchats
had not caused substantial disruption at the school. Cf.
Tinker v. Des Moines Independent Community School Dist.,
393 U. S. 503 (1969). Consequently, the District Court de-
clared that B. L.’s punishment violated the First Amend-
ment, and it awarded B. L. nominal damages and attorneys’
fees and ordered the school to expunge her disciplinary rec-
ord.
On appeal, a panel of the Third Circuit affirmed the Dis-
trict Court’s conclusion. See 964 F. 3d 170, 194 (2020). In
so doing, the majority noted that this Court had previously
held in Tinker that a public high school could not constitu-
tionally prohibit a peaceful student political demonstration
consisting of “ ‘pure speech’ ” on school property during the
school day. 393 U. S., at 505–506, 514. In reaching its con-
clusion in Tinker, this Court emphasized that there was no
evidence the student protest would “substantially interfere
with the work of the school or impinge upon the rights of
other students.” Id., at 509. But the Court also said that:
“[C]onduct by [a] student, in class or out of it, which for any
4 MAHANOY AREA SCHOOL DIST. v. B. L.
Opinion of the Court
reason—whether it stems from time, place, or type of be-
havior—materially disrupts classwork or involves substan-
tial disorder or invasion of the rights of others is . . . not
immunized by the constitutional guarantee of freedom of
speech.” Id., at 513.
Many courts have taken this statement as setting a
standard—a standard that allows schools considerable free-
dom on campus to discipline students for conduct that the
First Amendment might otherwise protect. But here, the
panel majority held that this additional freedom did “not
apply to off-campus speech,” which it defined as “speech
that is outside school-owned, -operated, or -supervised
channels and that is not reasonably interpreted as bearing
the school’s imprimatur.” 964 F. 3d, at 189. Because B. L.’s
speech took place off campus, the panel concluded that the
Tinker standard did not apply and the school consequently
could not discipline B. L. for engaging in a form of pure
speech.
A concurring member of the panel agreed with the major-
ity’s result but wrote that the school had not sufficiently
justified disciplining B. L. because, whether the Tinker
standard did or did not apply, B. L.’s speech was not sub-
stantially disruptive.
C
The school district filed a petition for certiorari in this
Court, asking us to decide “[w]hether [Tinker], which holds
that public school officials may regulate speech that would
materially and substantially disrupt the work and disci-
pline of the school, applies to student speech that occurs off
campus.” Pet. for Cert. I. We granted the petition.
II
We have made clear that students do not “shed their con-
stitutional rights to freedom of speech or expression,” even
“at the school house gate.” Tinker, 393 U. S., at 506; see
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
also Brown v. Entertainment Merchants Assn., 564 U. S.
786, 794 (2011) (“[M]inors are entitled to a significant meas-
ure of First Amendment protection” (alteration in original;
internal quotation marks omitted)). But we have also made
clear that courts must apply the First Amendment “in light
of the special characteristics of the school environment.”
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266
(1988) (internal quotation mark omitted). One such char-
acteristic, which we have stressed, is the fact that schools
at times stand in loco parentis, i.e., in the place of parents.
See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684
(1986).
This Court has previously outlined three specific catego-
ries of student speech that schools may regulate in certain
circumstances: (1) “indecent,” “lewd,” or “vulgar” speech ut-
tered during a school assembly on school grounds, see id.,
at 685; (2) speech, uttered during a class trip, that promotes
“illegal drug use,” see Morse v. Frederick, 551 U. S. 393, 409
(2007); and (3) speech that others may reasonably perceive
as “bear[ing] the imprimatur of the school,” such as that ap-
pearing in a school-sponsored newspaper, see Kuhlmeier,
484 U. S., at 271.
Finally, in Tinker, we said schools have a special interest
in regulating speech that “materially disrupts classwork or
involves substantial disorder or invasion of the rights of
others.” 393 U. S., at 513. These special characteristics call
for special leeway when schools regulate speech that occurs
under its supervision.
Unlike the Third Circuit, we do not believe the special
characteristics that give schools additional license to regu-
late student speech always disappear when a school regu-
lates speech that takes place off campus. The school’s reg-
ulatory interests remain significant in some off-campus
circumstances. The parties’ briefs, and those of amici, list
several types of off-campus behavior that may call for school
6 MAHANOY AREA SCHOOL DIST. v. B. L.
Opinion of the Court
regulation. These include serious or severe bullying or har-
assment targeting particular individuals; threats aimed at
teachers or other students; the failure to follow rules con-
cerning lessons, the writing of papers, the use of computers,
or participation in other online school activities; and
breaches of school security devices, including material
maintained within school computers.
Even B. L. herself and the amici supporting her would
redefine the Third Circuit’s off-campus/on-campus distinc-
tion, treating as on campus: all times when the school is
responsible for the student; the school’s immediate sur-
roundings; travel en route to and from the school; all speech
taking place over school laptops or on a school’s website;
speech taking place during remote learning; activities
taken for school credit; and communications to school e-
mail accounts or phones. Brief for Respondents 36–37. And
it may be that speech related to extracurricular activities,
such as team sports, would also receive special treatment
under B. L.’s proposed rule. See Tr. of Oral Arg. 71, 85.
We are uncertain as to the length or content of any such
list of appropriate exceptions or carveouts to the Third Cir-
cuit majority’s rule. That rule, basically, if not entirely,
would deny the off-campus applicability of Tinker’s highly
general statement about the nature of a school’s special in-
terests. Particularly given the advent of computer-based
learning, we hesitate to determine precisely which of many
school-related off-campus activities belong on such a list.
Neither do we now know how such a list might vary, de-
pending upon a student’s age, the nature of the school’s off-
campus activity, or the impact upon the school itself. Thus,
we do not now set forth a broad, highly general First
Amendment rule stating just what counts as “off campus”
speech and whether or how ordinary First Amendment
standards must give way off campus to a school’s special
need to prevent, e.g., substantial disruption of learning-re-
lated activities or the protection of those who make up a
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
school community.
We can, however, mention three features of off-campus
speech that often, even if not always, distinguish schools’
efforts to regulate that speech from their efforts to regulate
on-campus speech. Those features diminish the strength of
the unique educational characteristics that might call for
special First Amendment leeway.
First, a school, in relation to off-campus speech, will
rarely stand in loco parentis. The doctrine of in loco paren-
tis treats school administrators as standing in the place of
students’ parents under circumstances where the children’s
actual parents cannot protect, guide, and discipline them.
Geographically speaking, off-campus speech will normally
fall within the zone of parental, rather than school-related,
responsibility.
Second, from the student speaker’s perspective, regula-
tions of off-campus speech, when coupled with regulations
of on-campus speech, include all the speech a student utters
during the full 24-hour day. That means courts must be
more skeptical of a school’s efforts to regulate off-campus
speech, for doing so may mean the student cannot engage
in that kind of speech at all. When it comes to political or
religious speech that occurs outside school or a school pro-
gram or activity, the school will have a heavy burden to jus-
tify intervention.
Third, the school itself has an interest in protecting a stu-
dent’s unpopular expression, especially when the expres-
sion takes place off campus. America’s public schools are
the nurseries of democracy. Our representative democracy
only works if we protect the “marketplace of ideas.” This
free exchange facilitates an informed public opinion, which,
when transmitted to lawmakers, helps produce laws that
reflect the People’s will. That protection must include the
protection of unpopular ideas, for popular ideas have less
need for protection. Thus, schools have a strong interest in
ensuring that future generations understand the workings
8 MAHANOY AREA SCHOOL DIST. v. B. L.
Opinion of the Court
in practice of the well-known aphorism, “I disapprove of
what you say, but I will defend to the death your right to
say it.” (Although this quote is often attributed to Voltaire,
it was likely coined by an English writer, Evelyn Beatrice
Hall.)
Given the many different kinds of off-campus speech, the
different potential school-related and circumstance-specific
justifications, and the differing extent to which those justi-
fications may call for First Amendment leeway, we can, as
a general matter, say little more than this: Taken together,
these three features of much off-campus speech mean that
the leeway the First Amendment grants to schools in light
of their special characteristics is diminished. We leave for
future cases to decide where, when, and how these features
mean the speaker’s off-campus location will make the criti-
cal difference. This case can, however, provide one exam-
ple.
III
Consider B. L.’s speech. Putting aside the vulgar lan-
guage, the listener would hear criticism, of the team, the
team’s coaches, and the school—in a word or two, criticism
of the rules of a community of which B. L. forms a part. This
criticism did not involve features that would place it outside
the First Amendment’s ordinary protection. B. L.’s posts,
while crude, did not amount to fighting words. See Chap-
linsky v. New Hampshire, 315 U. S. 568 (1942). And while
B. L. used vulgarity, her speech was not obscene as this
Court has understood that term. See Cohen v. California,
403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered
the kind of pure speech to which, were she an adult, the
First Amendment would provide strong protection. See id.,
at 24; cf. Snyder v. Phelps, 562 U. S. 443, 461 (2011) (First
Amendment protects “even hurtful speech on public issues
to ensure that we do not stifle public debate”); Rankin v.
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
McPherson, 483 U. S. 378, 387 (1987) (“The inappropri-
ate . . . character of a statement is irrelevant to the question
whether it deals with a matter of public concern”).
Consider too when, where, and how B. L. spoke. Her
posts appeared outside of school hours from a location out-
side the school. She did not identify the school in her posts
or target any member of the school community with vulgar
or abusive language. B. L. also transmitted her speech
through a personal cellphone, to an audience consisting of
her private circle of Snapchat friends. These features of her
speech, while risking transmission to the school itself, none-
theless (for reasons we have just explained, supra, at 7–8)
diminish the school’s interest in punishing B. L.’s utter-
ance.
But what about the school’s interest, here primarily an
interest in prohibiting students from using vulgar language
to criticize a school team or its coaches—at least when that
criticism might well be transmitted to other students, team
members, coaches, and faculty? We can break that general
interest into three parts.
First, we consider the school’s interest in teaching good
manners and consequently in punishing the use of vulgar
language aimed at part of the school community. See App.
35 (indicating that coaches removed B. L. from the cheer
team because “there was profanity in [her] Snap and it was
directed towards cheerleading”); see also id., at 27, 47, and
n. 9, 78, 82. The strength of this anti-vulgarity interest is
weakened considerably by the fact that B. L. spoke outside
the school on her own time. See Morse, 551 U. S., at 405(clarifying that although a school can regulate a student’s
use of sexual innuendo in a speech given within the school,
if the student “delivered the same speech in a public forum
outside the school context, it would have been protected”);
see also Fraser, 478 U. S., at 688 (Brennan, J., concurring
in judgment) (noting that if the student in Fraser “had
given the same speech outside of the school environment,
10 MAHANOY AREA SCHOOL DIST. v. B. L.
Opinion of the Court
he could not have been penalized simply because govern-
ment officials considered his language to be inappropri-
ate”).
B. L. spoke under circumstances where the school did not
stand in loco parentis. And there is no reason to believe
B. L.’s parents had delegated to school officials their own
control of B. L.’s behavior at the Cocoa Hut. Moreover, the
vulgarity in B. L.’s posts encompassed a message, an ex-
pression of B. L.’s irritation with, and criticism of, the
school and cheerleading communities. Further, the school
has presented no evidence of any general effort to prevent
students from using vulgarity outside the classroom. To-
gether, these facts convince us that the school’s interest in
teaching good manners is not sufficient, in this case, to
overcome B. L.’s interest in free expression.
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 “substan-
tial 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. Rather, the record shows that
discussion of the matter took, at most, 5 to 10 minutes of an
Algebra class “for just a couple of days” and that some mem-
bers of the cheerleading team were “upset” about the con-
tent 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 ask-
ing . . . about it,” she responded simply, “No.” Id., at 84. As
we said in Tinker, “for the State in the person of school offi-
cials to justify prohibition of a particular expression of opin-
ion, 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. The alleged disturbance here
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
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 particu-
lar 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, how-
ever, 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 co-
hesion. As we have previously said, simple “undifferenti-
ated fear or apprehension . . . is not enough to overcome the
right to freedom of expression.” Tinker, 393 U. S., at 508.
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 super-
fluous in order to preserve the necessary. See Tyson &
Brother v. Banton, 273 U. S. 418, 447 (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 fundamen-
tal societal values are truly implicated.” Cohen, 403 U. S.,
at 25.
* * *
Although we do not agree with the reasoning of the Third
Circuit’s panel majority, for the reasons expressed above,
resembling those of the panel’s concurring opinion, we
nonetheless agree that the school violated B. L.’s First
Amendment rights. The judgment of the Third Circuit is
therefore affirmed.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–255
_________________
MAHANOY AREA SCHOOL DISTRICT, PETITIONER v.
B. L., A MINOR, BY AND THROUGH HER FATHER,
LAWRENCE LEVY AND HER MOTHER,
BETTY LOU LEVY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 23, 2021]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, con-
curring.
I join the opinion of the Court but write separately to
explain my understanding of the Court’s decision and
the framework within which I think cases like this
should be analyzed. This is the first case in which we
have considered the constitutionality of a public school’s
attempt to regulate true off-premises student speech,1
——————
1 In Tinker v. Des Moines Independent Community School Dist., 393
U. S. 503 (1969), not only did the speech occur on school grounds during
the regular school day, but our opinion was specifically directed at on-
premises speech. See id., at 506 (“It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate” (emphasis added)); ibid. (“First
Amendment rights, applied in light of the special characteristics of the
school environment, are available to teachers and students” (emphasis
added)); id., at 507 (“[T]he Court has repeatedly emphasized the need for
affirming the comprehensive authority of the States and of school offi-
cials, consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools” (emphasis added)); id., at 512–513
(referring to speech that occurs “in the classroom,” “in the cafeteria, or
on the playing field, or on the campus during the authorized hours”).
Tinker makes no reference whatsoever to speech that takes place off
premises and outside “authorized hours.”
2 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
and therefore it is important that our opinion not be misun-
derstood.2
I
The Court holds—and I agree—that: the First Amend-
ment permits public schools to regulate some student
speech that does not occur on school premises during the
regular school day;3 this authority is more limited than the
authority that schools exercise with respect to on-premises
speech;4 courts should be “skeptical” about the constitution-
ality of the regulation of off-premises speech;5 the doctrine
of in loco parentis “rarely” applies to off-premises speech;6
public school students, like all other Americans, have the
right to express “unpopular” ideas on public issues, even
when those ideas are expressed in language that some find
——————
All our other cases involving the free-speech rights of public school stu-
dents concerned speech in school or in a school-sponsored event or publi-
cation. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 677–678
(1986) (school assembly); Hazelwood School Dist. v. Kuhlmeier, 484 U. S.
260, 262 (1988) (school newspaper); Morse v. Frederick, 551 U. S. 393,
397 (2007) (display of banner on street near school at school-sponsored
event).
2 This case does not involve speech by a student at a public college or
university. For several reasons, including the age, independence, and
living arrangements of such students, regulation of their speech may
raise very different questions from those presented here. I do not under-
stand the decision in this case to apply to such students.
3 See ante, at 5 (stating that a public school’s authority to regulate stu-
dent speech does not “always disappear” when the speech “takes place
off campus” (emphasis added)); ibid. (“The school’s regulatory interests
remain significant in some off-campus circumstances” (emphasis
added)).
4 See ante, at 8 (stating that schools have “diminished” authority to
regulate off-premises speech).
5 See ante, at 7 (“[C]ourts must be more skeptical of a school’s efforts to
regulate off-campus speech”).
6 See ibid. (“[A] school, in relation to off-campus speech, will rarely
stand in loco parentis”).
Cite as: 594 U. S. ____ (2021) 3
ALITO, J., concurring
“ ‘ inappropriate ’ ” or “ ‘ hurtful ’ ”;7 public schools have the
duty to teach students that freedom of speech, including un-
popular speech, is essential to our form of self-government;8
the Mahanoy Area High School violated B. L.’s First
Amendment rights when it punished her for the messages
she posted on her own time while away from school prem-
ises; and the judgment of the Third Circuit must therefore
be affirmed.
I also agree that it is not prudent for us to attempt at this
time to “set forth a broad, highly general First Amendment
rule” governing all off-premises speech. Ante, at 6. But in
order to understand what the Court has held, it is helpful
to consider the framework within which efforts to regulate
off-premises speech should be analyzed.
II
I start with this threshold question: Why does the First
Amendment ever allow the free-speech rights of public
school students to be restricted to a greater extent than the
rights of other juveniles who do not attend a public school?
As the Court recognized in Tinker v. Des Moines Independ-
ent Community School Dist., 393 U. S. 503, 509 (1969),
when a public school regulates student speech, it acts as an
arm of the State in which it is located. Suppose that B. L.
had been enrolled in a private school and did exactly what
she did in this case—send out vulgar and derogatory mes-
sages that focused on her school’s cheerleading squad. The
Commonwealth of Pennsylvania would have had no legal
basis to punish her and almost certainly would not have
even tried. So why should her status as a public school stu-
dent give the Commonwealth any greater authority to pun-
ish her speech?
Our cases involving the regulation of student speech have
——————
7 Ante, at 7, 8–9.
8 Ante, at 7–8.
4 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
not directly addressed this question. All those cases in-
volved either in-school speech or speech that was tanta-
mount to in-school speech. See n. 1, supra. And in those
cases, the Court appeared to take it for granted that “the
special characteristics of the school environment” justified
special rules. Morse v. Frederick, 551 U. S. 393, 397, 403,
405, 406, n. 2, 408 (2007) (internal quotation marks omit-
ted); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260,
266 (1988) (internal quotation marks omitted); Tinker, 393
U. S., at 506.
Why the Court took this for granted is not hard to imag-
ine. As a practical matter, it is impossible to see how a
school could function if administrators and teachers could
not regulate on-premises student speech, including by im-
posing content-based restrictions in the classroom. In a
math class, for example, the teacher can insist that stu-
dents talk about math, not some other subject. See
Kuhlmeier, 484 U. S., at 279 (Brennan, J., dissenting) (“The
young polemic who stands on a soapbox during calculus
class to deliver an eloquent political diatribe interferes with
the legitimate teaching of calculus”). In addition, when a
teacher asks a question, the teacher must have the author-
ity to insist that the student respond to that question and
not some other question, and a teacher must also have the
authority to speak without interruption and to demand that
students refrain from interrupting one another. Practical
necessity likewise dictates that teachers and school admin-
istrators have related authority with respect to other in-
school activities like auditorium programs attended by a
large audience. See Bethel School Dist. No. 403 v. Fraser,
478 U. S. 675, 685 (1986) (“A high school assembly . . . is no
place for a sexually explicit monologue directed towards an
unsuspecting audience of teenage students”); id., at 689(Brennan, J., concurring in judgment) (“In the present case,
school officials sought only to ensure that a high school as-
sembly proceed in an orderly manner”); see also Kuhlmeier,
Cite as: 594 U. S. ____ (2021) 5
ALITO, J., concurring
484 U. S., at 279 (Brennan, J., dissenting) (“[T]he student
who delivers a lewd endorsement of a student-government
candidate might so extremely distract an impressionable
high school audience as to interfere with the orderly opera-
tion of the school”).
Because no school could operate effectively if teachers
and administrators lacked the authority to regulate in-
school speech in these ways, the Court may have felt no
need to specify the source of this authority or to explain how
the special rules applicable to in-school student speech fit
into our broader framework of free-speech case law. But
when a public school regulates what students say or write
when they are not on school grounds and are not participat-
ing in a school program, the school has the obligation to an-
swer the question with which I began: Why should enroll-
ment in a public school result in the diminution of a
student’s free-speech rights?
The only plausible answer that comes readily to mind is
consent, either express or implied. The theory must be that
by enrolling a child in a public school, parents consent on
behalf of the child to the relinquishment of some of the
child’s free-speech rights.
This understanding is consistent with the conditions to
which an adult would implicitly consent by enrolling in an
adult education class run by a unit of state or local govern-
ment. If an adult signs up for, say, a French class, the adult
may be required to speak French, to answer the teacher’s
questions, and to comply with other rules that are imposed
for the sake of orderly instruction.
When it comes to children, courts in this country have
analyzed the issue of consent by adapting the common-law
doctrine of in loco parentis. See Morse, 551 U. S., at 413–
416 (THOMAS, J., concurring). Under the common law, as
Blackstone explained, “[a father could] delegate part of his
parental authority . . . to the tutor or schoolmaster of his
child; who is then in loco parentis, and has such a portion
6 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
of the power of the parent committed to his charge, [namely,]
that of restraint and correction, as may be necessary to an-
swer the purposes for which he is employed.” 1 W. Black-
stone, Commentaries on the Laws of England 441 (1765)
(some emphasis added).
Blackstone’s explanation of the doctrine seems to treat it
primarily as an implied term in a private employment
agreement between a father and those with whom he con-
tracted for the provision of educational services for his
child,9 and therefore the scope of the delegation that could
be inferred depended on “the purposes for which [the tutor
or schoolmaster was] employed.” Ibid. If a child was sent
to a boarding school, the parents would not have been in a
position to monitor or control the child’s behavior or to at-
tend to the child’s welfare on a daily basis, and the school-
master would be regarded as having implicitly received the
authority to perform those functions around the clock while
the child was in residence. On the other hand, if parents
hired a tutor to instruct a child in the home on certain sub-
jects during certain hours, the scope of the delegation would
be different. The tutor would be in charge during lessons,
but the parents would retain most of their authority. In
short, the scope of the delegation depended on the scope of
the agreed-upon undertaking.
Today, of course, the educational picture is quite differ-
ent. The education of children within a specified age range
is compulsory,10 and States specify the minimum number of
——————
9 In a sensational and highly publicized mid-19th century case, there
was an express delegation, Regina v. Hopley, 2 F. & F. 202, 175 Eng. Rep.
1024 (N. P. 1860), but in other 19th century cases, the delegation was
inferred. See Fitzgerald v. Northcote, 4 F. & F. 656, 176 Eng. Rep. 734
(N. P. 1865); State v. Osborne, 24 Mo. App. 309 (1887).
10 See Ingraham v. Wright, 430 U. S. 651, 660, n. 14 (1977) (noting that
“compulsory school attendance laws were in force in all the States” by
1918).
Cite as: 594 U. S. ____ (2021) 7
ALITO, J., concurring
hours per day and the minimum number of days per year
that a student must attend classes, as well as many aspects
of the school curriculum.11 Parents are not required to en-
roll their children in a public school. They can select a pri-
vate school if a suitable one is available and they can afford
the tuition, and they may also be able to educate their chil-
dren at home if they have the time and ability and can meet
the standards that their State imposes.12 But by choice or
necessity, nearly 90% of the students in this country attend
public schools,13 and parents and public schools do not enter
into a contractual relationship.
If in loco parentis is transplanted from Blackstone’s Eng-
land to the 21st century United States, what it amounts to
is simply a doctrine of inferred parental consent to a public
——————
11 See National Center for Education Statistics (NCES), State Educa-
tion Practices, Table 5.14: Number of Instructional Days and Hours in
the School Year, by State, 2018, https://nces.ed.gov/programs/
statereform/tab5_14.asp.
12 Pennsylvania, for example, requires a minimum of 180 days of in-
struction per year. See Pa. Stat. Ann., Tit. 24, §13–1327.1(c) (Purdon
2016). Students must be taught English, mathematics, science, geogra-
phy, history, civics, safety education, health, physical education, music,
and art. §§13–1327.1(c)(1)–(2). Parents are required to maintain current
and detailed records of their child’s learning materials and progress,
§13–1327.1(e)(1), and they must turn those records over to a teacher or
psychologist for an annual evaluation to determine whether “an appro-
priate education is occurring,” §13–1327.1(e)(2). The evaluation also in-
cludes an interview of the child. Ibid. Once the evaluation is completed,
it is submitted to the superintendent of the public school district of resi-
dence. §§13–1327.1(e)(2), (h)(1). If the superintendent and a hearing
examiner find that the child is not being supplied an appropriate educa-
tion, and the parents’ appeal of that decision is unsuccessful, the child
will be promptly enrolled in the public school district of residence or a
private school. §§13–1327.1(k)–(l).
13 See NCES, School Choice in the United States, 2019, Table 206.20:
Percentage Distribution of Students Ages 5 through 17 Attending Kin-
dergarten through 12th Grade, By School Type or Participation in Home-
schooling and Selected Child, Parent, and Household Characteristics, Se-
lected Years 1999 Through 2016, https://nces.ed.gov/programs/
digest//d19/tables/dt19_206.20.asp.
8 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
school’s exercise of a degree of authority that is commensu-
rate with the task that the parents ask the school to per-
form. Because public school students attend school for only
part of the day and continue to live at home, the degree of
authority conferred is obviously less than that delegated to
the head of a late-18th century boarding school, but because
public school students are taught outside the home, the au-
thority conferred may be greater in at least some respects
than that enjoyed by a tutor of Blackstone’s time.
So how much authority to regulate speech do parents im-
plicitly delegate when they enroll a child at a public school?
The answer must be that parents are treated as having re-
linquished the measure of authority that the schools must
be able to exercise in order to carry out their state-
mandated educational mission, as well as the authority to
perform any other functions to which parents expressly or
implicitly agree—for example, by giving permission for a
child to participate in an extracurricular activity or to go on
a school trip.
III
I have already explained what this delegated authority
means with respect to student speech during standard
classroom instruction. And it is reasonable to infer that
this authority extends to periods when students are in
school but are not in class, for example, when they are walk-
ing in a hall, eating lunch, congregating outside before the
school day starts, or waiting for a bus after school. During
the entire school day, a school must have the authority to
protect everyone on its premises, and therefore schools
must be able to prohibit threatening and harassing speech.
An effective instructional atmosphere could not be main-
tained in a school, and good teachers would be hard to re-
cruit and retain, if students were free to abuse or disrespect
them. And the school has a duty to protect students while
in school because their parents are unable to do that during
Cite as: 594 U. S. ____ (2021) 9
ALITO, J., concurring
those hours. See Morse, 551 U. S., at 424 (ALITO, J., con-
curring). But even when students are on school premises
during regular school hours, they are not stripped of their
free-speech rights. Tinker teaches that expression that
does not interfere with a class (such as by straying from the
topic, interrupting the teacher or other students, etc.) can-
not be suppressed unless it “involves substantial disorder
or invasion of the rights of others.” 393 U. S., at 513.
IV
A
A public school’s regulation of off-premises student
speech is a different matter. While the decision to enroll a
student in a public school may be regarded as conferring
the authority to regulate some off-premises speech (a sub-
ject I address below), enrollment cannot be treated as a
complete transfer of parental authority over a student’s
speech. In our society, parents, not the State, have the pri-
mary authority and duty to raise, educate, and form the
character of their children. See Wisconsin v. Yoder, 406
U. S. 205, 232 (1972) (“The history and culture of Western
civilization reflect a strong tradition of parental concern for
the nurture and upbringing of their children. This primary
role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradi-
tion”); Pierce v. Society of Sisters, 268 U. S. 510, 534–535
(1925) (discussing “the liberty of parents and guardians to
direct the upbringing and education of children under their
control”). Parents do not implicitly relinquish all that au-
thority when they send their children to a public school. As
the Court notes, it would be far-fetched to suggest that en-
rollment implicitly confers the right to regulate what a child
10 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
says or writes at all times of day and throughout the calen-
dar year. See ante, at 7.14 Any such argument would run
headlong into the fundamental principle that a State “may
not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech even if he
has no entitlement to that benefit.”15 Agency for Int’l Devel-
opment v. Alliance for Open Society Int’l, Inc., 570 U. S. 205,
214 (2013) (internal quotation marks omitted). While the
in-school restrictions discussed above are essential to the
operation of a public school system, any argument in favor
of expansive regulation of off-premises speech must contend
with this fundamental free-speech principle.
——————
14 There is no basis for concluding that the original public meaning of
the free-speech right protected by the First and Fourteenth Amendments
was understood by Congress or the legislatures that ratified those
Amendments as permitting a public school to punish a wide swath of off-
premises student speech. Compare post, at 2–4 (THOMAS, J., dissenting).
At the time of the adoption of the First Amendment, public education
was virtually unknown, and the Amendment did not apply to the States.
And as for the Fourteenth Amendment, research has found only one pre-
1868 case involving a public school’s regulation of a student’s off-prem-
ises speech. In Lander v. Seaver, 32 Vt. 114 (1859), an 11-year-old boy,
while driving his father’s cow by the home of his teacher, called the
teacher “Old Jack Seaver” in the presence of other students. Id., at 115
(emphasis deleted). The next day, the teacher “whipped him with a small
rawhide.” Ibid. In a tort suit against the teacher for assault and battery,
the Supreme Court of Vermont reversed the lower court’s judgment for
the teacher but opined that the teacher had the authority to punish the
student’s speech because of its effect on the operation of the school. Id.,
at 120–121, 125. This decision is of negligible value for present purposes.
It does not appear that any claim was raised under the state constitu-
tional provision protecting freedom of speech. And even if flinty Vermont
parents at the time in question could be understood to have implicitly
delegated to the teacher the authority to whip their son for his off-prem-
ises speech, the same inference is wholly unrealistic today.
15 Here, the Pennsylvania Constitution required that B. L. and all
other students be offered “a thorough and efficient system of public edu-
cation.” Art. III, §14.
Cite as: 594 U. S. ____ (2021) 11
ALITO, J., concurring
B
The degree to which enrollment in a public school can be
regarded as a delegation of authority over off-campus
speech depends on the nature of the speech and the circum-
stances under which it occurs. I will not attempt to provide
a complete taxonomy of off-premises speech, but relevant
lower court cases tend to fall into a few basic groups. And
with respect to speech in each of these groups, the question
that courts must ask is whether parents who enroll their
children in a public school can reasonably be understood to
have delegated to the school the authority to regulate the
speech in question.
One category of off-premises student speech falls easily
within the scope of the authority that parents implicitly or
explicitly provide. This category includes speech that takes
place during or as part of what amounts to a temporal or
spatial extension of the regular school program, e.g., online
instruction at home, assigned essays or other homework,
and transportation to and from school. Also included are
statements made during other school activities in which
students participate with their parents’ consent, such as
school trips, school sports and other extracurricular activi-
ties that may take place after regular school hours or off
school premises, and after-school programs for students
who would otherwise be without adult supervision during
that time. Abusive speech that occurs while students are
walking to and from school may also fall into this category
on the theory that it is school attendance that puts students
on that route and in the company of the fellow students who
engage in the abuse. The imperatives that justify the reg-
ulation of student speech while in school—the need for or-
derly and effective instruction and student protection—ap-
ply more or less equally to these off-premises activities.
Most of the specific examples of off-premises speech that
the Court mentions fall into this category. See ante, at 6
12 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
(speech taking place during “remote learning,” “participa-
tion in other online school activities,” “activities taken for
school credit,” “travel en route to and from the school,” “[the
time during which] the school is responsible for the stu-
dent,” and “extracurricular activities,” as well as speech
taking place on “the school’s immediate surroundings” or in
the context of “writing . . . papers”).16 The Court’s broad
statements about off-premises speech must be understood
with this in mind.
At the other end of the spectrum, there is a category of
speech that is almost always beyond the regulatory author-
ity of a public school. This is student speech that is not ex-
pressly and specifically directed at the school, school admin-
istrators, teachers, or fellow students and that addresses
matters of public concern, including sensitive subjects like
politics, religion, and social relations. Speech on such mat-
ters lies at the heart of the First Amendment’s protection,
——————
16 Two other examples mentioned by the Court—“communications to
school e-mail accounts or phones” and speech “on a school’s website”—
may fall into the same category if they concern school work. Ante, at 6.
The Court also mentions “breaches of school security devices,” ibid., but
such breaches may be punishable regardless of whether the perpetrator
is a student at the school. See, e.g., 18 Pa. Const. Stat. §7611 (2016)
(“Unlawful use of computer and other computer crimes”). Another spe-
cific example provided by the Court is “all speech taking place over school
laptops.” Ante, at 6. I do not take this statement to apply under all cir-
cumstances to all student speech on such laptops. In a well-publicized
case, a public high school that provided laptops to high school students
used those computers to surreptitiously monitor students’ private mes-
sages and to photograph them in their homes. See Robbins v. Lower
Merion School Dist., 2010 WL 3421026, *1 (ED Pa., Aug. 30, 2010); see
also Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion
for Class Certification and in Support of Defendants’ Cross-Motion for
Entry of Permanent Equitable Relief in Robbins v. Lower Merion School
Dist., No. 2:10–cv–00665 (ED Pa.), pp. 4–5. I do not understand the
Court to approve such a practice. In assessing the degree to which a
school can regulate speech on a laptop that a school provides for student
use outside school, it would be important to know the terms of the agree-
ment under which the laptop was provided.
Cite as: 594 U. S. ____ (2021) 13
ALITO, J., concurring
see Lane v. Franks, 573 U. S. 228, 235 (2014) (“Speech by
citizens on matters of public concern lies at the heart of the
First Amendment”); Schenck v. Pro-Choice Network of
Western N. Y., 519 U. S. 357, 377 (1997) (“Leafletting and
commenting on matters of public concern are classic forms
of speech that lie at the heart of the First Amendment”);
Capital Square Review and Advisory Bd. v. Pinette, 515
U. S. 753, 760 (1995) (“[A] free-speech clause without reli-
gion would be Hamlet without the prince”); McIntyre v.
Ohio Elections Comm’n, 514 U. S. 334, 347 (1995) (“[A]dvo-
cacy of a politically controversial viewpoint . . . is the es-
sence of First Amendment expression”); Hustler Magazine,
Inc. v. Falwell, 485 U. S. 46, 50 (1988) (“At the heart of the
First Amendment is the recognition of the fundamental im-
portance of the free flow of ideas and opinions on matters of
public interest and concern”); Connick v. Myers, 461 U. S.
138, 145 (1983) (“[S]peech on public issues occupies the
highest rung of the hierarchy of First Amendment values,
and is entitled to special protection” (internal quotation
marks omitted)), and the connection between student
speech in this category and the ability of a public school to
carry out its instructional program is tenuous.
If a school tried to regulate such speech, the most that it
could claim is that offensive off-premises speech on im-
portant matters may cause controversy and recriminations
among students and may thus disrupt instruction and good
order on school premises. But it is a “bedrock principle”
that speech may not be suppressed simply because it ex-
presses ideas that are “offensive or disagreeable.” Texas v.
Johnson, 491 U. S. 397, 414 (1989); see also Matal v. Tam,
582 U. S. ___, ___–___ (2017) (slip op., at 1–2) (“Speech may
not be banned on the ground that it expresses ideas that
offend”); FCC v. Pacifica Foundation, 438 U. S. 726, 745
(1978) (opinion of Stevens, J.) (“[T]he fact that society may
find speech offensive is not a sufficient reason for suppress-
ing it”); Young v. American Mini Theatres, Inc., 427 U. S.
14 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
50, 63–64 (1976) (plurality opinion) (“Nor may speech be
curtailed because it invites dispute, creates dissatisfaction
with conditions the way they are, or even stirs people to an-
ger”); Street v. New York, 394 U. S. 576, 592 (1969) (“It is
firmly settled that under our Constitution the public ex-
pression of ideas may not be prohibited merely because the
ideas are themselves offensive to some of their hearers”). It
is unreasonable to infer that parents who send a child to a
public school thereby authorize the school to take away
such a critical right.
To her credit, petitioner’s attorney acknowledged this
during oral argument. As she explained, even if such
speech is deeply offensive to members of the school commu-
nity and may cause a disruption, the school cannot punish
the student who spoke out; “that would be a heckler’s veto.”
Tr. of Oral Arg. 15–16.17 The school may suppress the dis-
ruption, but it may not punish the off-campus speech that
prompted other students to engage in misconduct. See id.,at 5–6 (“[I]f listeners riot because they find speech offensive,
schools should punish the rioters, not the speaker. In other
words, the hecklers don’t get the veto”); see also id., at 27–
28.
This is true even if the student’s off-premises speech on a
matter of public concern is intemperate and crude. When a
student engages in oral or written communication of this
nature, the student is subject to whatever restraints the
student’s parents impose, but the student enjoys the same
First Amendment protection against government regula-
tion as all other members of the public. And the Court has
——————
17 Counsel was asked what a school could have done during the Vi-
etnam War era if a student said, “[the] war is immoral, American soldiers
are baby killers, I hope there are a lot of casualties so that people will
rise up.” Tr. of Oral Arg. 15. Counsel agreed that “[e]ven if that would
cause a disruption in the school,” “the school couldn’t do anything about
it.” Ibid. In her words, “that would be a heckler’s veto, no can do.” Id.,at 15–16.
Cite as: 594 U. S. ____ (2021) 15
ALITO, J., concurring
held that these rights extend to speech that is couched in
vulgar and offensive terms. See, e.g., Iancu v. Brunetti, 588
U. S. ___ (2019); Matal, 582 U. S. ___; Snyder v. Phelps, 562
U. S. 443 (2011); Cohen v. California, 403 U. S. 15 (1971);
Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam).
Between these two extremes (i.e., off-premises speech
that is tantamount to on-campus speech and general state-
ments made off premises on matters of public concern) lie
the categories of off-premises student speech that appear to
have given rise to the most litigation. A survey of lower
court cases reveals several prominent categories. I will
mention some of those categories, but like the Court, I do
not attempt to set out the test to be used in judging the con-
stitutionality of a public school’s efforts to regulate such
speech.
One group of cases involves perceived threats to school
administrators, teachers, other staff members, or students.
Laws that apply to everyone prohibit defined categories of
threats,18 see, e.g., 18 Pa. Cons. Stat. §2706(a);19 Tex. Penal
Code Ann. §22.07(a) (West 2020),20 but schools have
——————
18 The First Amendment permits prohibitions of “true threats,” which
are “statements where the speaker means to communicate a serious ex-
pression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359
(2003).
19 This law is commonly referred to as Pennsylvania’s “terrorist threat
statute.” It prohibits “communicat[ing], either directly or indirectly, a
threat to: (1) commit any crime of violence with intent to terrorize an-
other; (2) cause evacuation of a building, place of assembly or facility of
public transportation; or (3) otherwise cause serious public inconven-
ience, or cause terror or serious public inconvenience with reckless dis-
regard of the risk of causing such terror or inconvenience.”
20 In Texas, it is a crime to “threate[n] to commit any offense involving
violence to any person or property” with specified intent, such as the in-
tent to “place another person in fear of imminent serious bodily injury”
or to “interrupt the occupation or use of a . . . public place.”
16 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
claimed that their duties demand broader authority.21
Another common category involves speech that criticizes
or derides school administrators, teachers, or other staff
members.22 Schools may assert that parents who send their
children to a public school implicitly authorize the school to
demand that the child exhibit the respect that is required
for orderly and effective instruction, but parents surely do
not relinquish their children’s ability to complain in an ap-
propriate manner about wrongdoing, dereliction, or even
plain incompetence. See Brief for College Athlete Advo-
cates as Amicus Curiae 12–21; Brief for Student Press Law
Center et al. as Amici Curiae 10–11, 17–20, 30.
Perhaps the most difficult category involves criticism or
——————
21 See, e.g., McNeil v. Sherwood School Dist. 88J, 918 F. 3d 700, 704
(CA9 2019) (per curiam) (student created a “hit list” of students and drew
graphic images of violence); Wynar v. Douglas County School Dist., 728
F. 3d 1062, 1065–1066 (CA9 2013) (student spoke about committing a
school shooting); Wisniewski v. Board of Ed., 494 F. 3d 34, 36 (CA2 2007)
(student sent a message depicting a pistol firing a bullet at his English
teacher’s head); Porter v. Ascension Parish School Bd., 393 F. 3d 608, 611
(CA5 2004) (student drew a picture showing his school under attack by
a gasoline tanker, missile launcher, helicopter, and armed individuals);
Doe v. Pulaski County Special School Dist., 306 F. 3d 616, 619 (CA8 2002)
(en banc) (student drafted letters expressing a desire to molest, rape, and
murder his ex-girlfriend); but see Conroy v. Lacey Twp. School Dist.,
2020 WL 528896, *1 (D NJ, Jan. 31, 2020) (two high school students
posted photos on Snapchat showing them with legally purchased guns at
a shooting range on a Saturday, which another student claimed made
him “ ‘nervous to come to school’ ”); see also Conroy v. Lacey Twp. School
Dist., No. 3:19–cv–09452 (D NJ, Aug. 25, 2020) (order dismissing case
with prejudice after settlement). The cases cited in this footnote and
footnotes 22–23 are listed to show types of claims addressed by the lower
courts. I do not express any view about the correctness of the decisions.
22 See, e.g., Doninger v. Niehoff, 527 F. 3d 41, 45 (CA2 2008) (member
of student council posted a message on her personal blog complaining
about the administration and encouraging readers to call or e-mail the
school to complain); Evans v. Bayer, 684 F. Supp. 2d 1365, 1367 (SD Fla.
2010) (student created a Facebook group “for students to voice their dis-
like” of their teacher).
Cite as: 594 U. S. ____ (2021) 17
ALITO, J., concurring
hurtful remarks about other students.23 Bullying and se-
vere harassment are serious (and age-old) problems, but
these concepts are not easy to define with the precision re-
quired for a regulation of speech. See, e.g., Saxe v. State
College Area School Dist., 240 F. 3d 200, 206–207 (CA3
2001).
V
The present case does not fall into any of these categories.
Instead, it simply involves criticism (albeit in a crude man-
ner) of the school and an extracurricular activity. Unflat-
tering speech about a school or one of its programs is differ-
ent from speech that criticizes or derides particular
individuals, and for the reasons detailed by the Court and
by Judge Ambro in his separate opinion below, the school’s
justifications for punishing B. L.’s speech were weak. She
sent the messages and image in question on her own time
while at a local convenience store. They were transmitted
via a medium that preserved the communication for only 24
hours, and she sent them to a select group of “friends.” She
did not send the messages to the school or to any adminis-
trator, teacher, or coach, and no member of the school staff
would have even known about the messages if some of
B. L.’s “friends” had not taken it upon themselves to spread
the word.
The school did not claim that the messages caused any
significant disruption of classes. The most it asserted along
——————
23 See, e.g., S. J. W. v. Lee’s Summit R–7 School Dist., 696 F. 3d 771,
773–774 (CA8 2012) (high school juniors posted a variety of offensive,
racist, and sexually-explicit comments about particular female class-
mates); Kowalski v. Berkeley County Schools, 652 F. 3d 565, 567–568
(CA4 2011) (student created an online discussion group accusing another
student of having a sexually-transmitted disease); Dunkley v. Board of
Ed. of Greater Egg Harbor Regional High School Dist., 216 F. Supp. 3d
485, 487 (NJ 2016) (student used an anonymous Twitter account to insult
other students based on their appearances and athletic abilities).
18 MAHANOY AREA SCHOOL DIST. v. B. L.
ALITO, J., concurring
these lines was that they “upset” some students (including
members of the cheerleading squad),24 caused students to
ask some questions about the matter during an algebra
class taught by a cheerleading coach,25 and put out “nega-
tivity . . . that could impact students in the school.”26 The
freedom of students to speak off-campus would not be worth
much if it gave way in the face of such relatively minor com-
plaints. Speech cannot be suppressed just because it ex-
presses thoughts or sentiments that others find upsetting,
and the algebra teacher had the authority to quell in-class
discussion of B. L.’s messages and demand that the stu-
dents concentrate on the work of the class.
As for the messages’ effect on the morale of the cheerlead-
ing squad, the coach of a team sport may wish to take group
cohesion and harmony into account in selecting members of
the team, in assigning roles, and in allocating playing time,
but it is self-evident that this authority has limits. (To take
an obvious example, a coach could not discriminate against
a student for blowing the whistle on serious misconduct.)
And here, the school did not simply take B. L.’s messages
into account in deciding whether her attitude would make
her effective in doing what cheerleaders are primarily ex-
pected to do: encouraging vocal fan support at the events
where they appear. Instead, the school imposed punish-
ment: suspension for a year from the cheerleading squad
despite B. L.’s apologies.
There is, finally, the matter of B. L.’s language. There
are parents who would not have been pleased with B. L.’s
language and gesture, but whatever B. L.’s parents thought
about what she did, it is not reasonable to infer that they
gave the school the authority to regulate her choice of lan-
guage when she was off school premises and not engaged in
——————
24 App. 82.
25 Id., at 82–84.
26 Id., at 81.
Cite as: 594 U. S. ____ (2021) 19
ALITO, J., concurring
any school activity. And B. L.’s school does not claim that
it possesses or makes any effort to exercise the authority to
regulate the vocabulary and gestures of all its students 24
hours a day and 365 days a year.
There are more than 90,000 public school principals in
this country27 and more than 13,000 separate school dis-
tricts.28 The overwhelming majority of school administra-
tors, teachers, and coaches are men and women who are
deeply dedicated to the best interests of their students, but
it is predictable that there will be occasions when some will
get carried away, as did the school officials in the case at
hand. If today’s decision teaches any lesson, it must be that
the regulation of many types of off-premises student speech
raises serious First Amendment concerns, and school offi-
cials should proceed cautiously before venturing into this
territory.
——————
27 See NCES, School Principals, Table 212.08: Number and Percentage
Distribution in Public and Private Elementary and Secondary Schools,
Selected Years 1993–1994 Through 2017–2018, https://nces.ed.gov/
programs/digest/d19/tables/dt19_212.08.asp?current=yes.
28 See NCES, Overview of Schools and School Districts, Table 214.10:
Number of Public School Districts and Public and Private Elementary
and Secondary Schools, Selected Years 1869–1870 Through 2018–2019,
https://nces.ed.gov/programs/digest/d20/tables/dt20_214.10.asp.
Cite as: 594 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–255
_________________
MAHANOY AREA SCHOOL DISTRICT, PETITIONER v.
B. L., A MINOR, BY AND THROUGH HER FATHER,
LAWRENCE LEVY AND HER MOTHER,
BETTY LOU LEVY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 23, 2021]
JUSTICE THOMAS, dissenting.
B. L., a high school student, sent a profanity-laced mes-
sage to hundreds of people, including classmates and team-
mates. The message included a picture of B. L. raising her
middle finger and captioned “F*** school” and “f*** cheer.”
This message was juxtaposed with another, which ex-
plained that B. L. was frustrated that she failed to make
the varsity cheerleading squad. The cheerleading coach re-
sponded by disciplining B. L.
The Court overrides that decision—without even men-
tioning the 150 years of history supporting the coach. Us-
ing broad brushstrokes, the majority outlines the scope of
school authority. When students are on campus, the major-
ity says, schools have authority in loco parentis—that is, as
substitutes of parents—to discipline speech and conduct.
Off campus, the authority of schools is somewhat less. At
that level of generality, I agree. But the majority omits im-
portant detail. What authority does a school have when it
operates in loco parentis? How much less authority do
schools have over off-campus speech and conduct? And how
does a court decide if speech is on or off campus?
Disregarding these important issues, the majority simply
posits three vague considerations and reaches an outcome.
2 MAHANOY AREA SCHOOL DIST. v. B. L.
THOMAS, J., dissenting
A more searching review reveals that schools historically
could discipline students in circumstances like those pre-
sented here. Because the majority does not attempt to ex-
plain why we should not apply this historical rule and does
not attempt to tether its approach to anything stable, I re-
spectfully dissent.
I
A
While the majority entirely ignores the relevant history,
I would begin the assessment of the scope of free-speech
rights incorporated against the States by looking to “what
‘ordinary citizens’ at the time of [the Fourteenth Amend-
ment’s] ratification would have understood” the right to en-
compass. McDonald v. Chicago, 561 U. S. 742, 813 (2010)
(THOMAS, J., concurring in part and concurring in judg-
ment). Cases and treatises from that era reveal that public
schools retained substantial authority to discipline stu-
dents. As I have previously explained, that authority was
near plenary while students were at school. See Morse v.
Frederick, 551 U. S. 393, 419 (2007) (concurring opinion).
Authority also extended to when students were traveling to
or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120
(1859). And, although schools had less authority after a
student returned home, it was well settled that they still
could discipline students for off-campus speech or conduct
that had a proximate tendency to harm the school environ-
ment.
Perhaps the most familiar example applying this rule is
a case where a student, after returning home from school,
used “disrespectful language” against a teacher—he called
the teacher “old”—“in presence of the [teacher] and of some
of his fellow pupils.” Id., at 115 (emphasis deleted). The
Vermont Supreme Court held that the teacher could disci-
pline a student for this speech because the speech had “a
Cite as: 594 U. S. ____ (2021) 3
THOMAS, J., dissenting
direct and immediate tendency to injure the school, to sub-
vert the master’s authority, and to beget disorder and in-
subordination.” Id., at 120; see also ibid. (“direct and im-
mediate tendency to . . . bring the master’s authority into
contempt”). The court distinguished the speech at issue
from speech “in no ways connected with or affecting the
school” and speech that has “merely a remote and indirect
tendency to injure.” Id., at 120–121. In requiring a “direct
and immediate tendency” to harm, id., at 120, the court
used the language of proximate causation, see Black’s Law
Dictionary 274 (11th ed. 2019) (defining “proximate cause”
as a “cause that directly produces an event”); id., at 1481
(defining “proximate” as “[i]mmediately before or after”);
see also Atchison, T. & S. F. R. Co. v. Calhoun, 213 U. S. 1,
7 (1909) (using “proximate” cause and “immediate” cause
interchangeably).
This rule was widespread. It was consistent with “the
universal custom” in New England. Lander, 32 Vt., at 121.
Various cases, treatises, and school manuals endorsed it.*
And a justice of the Rhode Island Supreme Court, presiding
over a trial, declared the rule “well settled.” T. Stockwell,
The School Manual, Containing the School Laws of Rhode
Island 236–238 (1882) (Stockwell).
So widespread was this rule that it served not only as the
basis for schools to discipline disrespectful speech but also
to regulate truancy. Although modern doctrine draws a
clear line between speech and conduct, cases in the 19th
century did not. E.g., Lander, 32 Vt., at 120 (describing
——————
*E.g., Deskins v. Gose, 85 Mo. 485, 488–489 (1885) (citing Lander); F.
Burke, Law of Public Schools 116, 129 (1880) (“[W]hatsoever has a direct
and immediate tendency to injure the school in its important interests,
or to subvert the authority of those in charge of it, is properly a subject
for regulation and discipline, and this is so wherever the acts may be
committed” (citing Lander)); C. Bardeen, The New York School Office’s
Handbook 158 (1910) (citing Lander).
4 MAHANOY AREA SCHOOL DIST. v. B. L.
THOMAS, J., dissenting
speech as “acts of misbehavior”); Stockwell 236–238 (apply-
ing the Lander rule to “[t]he conduct of pupils”); Morse, 551
U. S., at 419 (THOMAS, J., concurring) (“speech rules and
other school rules were treated identically”). Citing
Lander, schools justified regulating truancy because of its
proximate tendency to harm schools. As the Missouri Su-
preme Court put it, although “[t]ruancy is an act committed
out of the school,” schools could regulate it because of its
“subversive” effects on the “good order and discipline of the
school.” Deskins v. Gose, 85 Mo. 485, 488–489 (1885); see
also Burdick v. Babcock, 31 Iowa 562, 565, 567 (1871) (“If
the effects of acts done out of school-hours reach within the
schoolroom during school hours and are detrimental to good
order and the best interest of the pupils, it is evident that
such acts may be forbidden”).
Some courts made statements that, if read in isolation,
could suggest that schools had no authority at all to regu-
late off-campus speech. E.g., Dritt v. Snodgrass, 66 Mo.
286, 297 (1877) (Norton, J., joined by a majority of the court,
concurring) (“neither the teacher nor directors have the au-
thority to follow [a student home], and govern his conduct
while under the parental eye” because that would “super-
sede entirely parental authority”). But, these courts made
it clear that the rule against regulating off-campus speech
applied only when that speech was “nowise connected with
the management or successful operation of the school.”
King v. Jefferson City School Bd., 71 Mo. 628, 630 (1880)
(distinguishing Dritt); accord, Lander, 32 Vt., at 120–121
(similar). In other words, they followed Lander: A school
can regulate speech when it occurs off campus, so long as it
has a proximate tendency to harm the school, its faculty or
students, or its programs.
B
If there is a good constitutional reason to depart from this
historical rule, the majority and the parties fail to identify
Cite as: 594 U. S. ____ (2021) 5
THOMAS, J., dissenting
it. I would thus apply the rule. Assuming that B. L.’s
speech occurred off campus, the purpose and effect of B. L.’s
speech was “to degrade the [program and cheerleading
staff]” in front of “other pupils,” thus having “a direct and
immediate tendency to . . . subvert the [cheerleading
coach’s] authority.” Id., at 115, 120. As a result, the coach
had authority to discipline B. L.
Our modern doctrine is not to the contrary. “[T]he penal-
ties imposed in this case were unrelated to any political
viewpoint” or religious viewpoint. Bethel School Dist. No.
403 v. Fraser, 478 U. S. 675, 685 (1986). And although the
majority sugar coats this speech as “criticism,” ante, at 8, it
is well settled that schools can punish “vulgar” speech—at
least when it occurs on campus, e.g., Fraser, 478 U. S., at683–684; ante, at 5.
The discipline here—a 1-year suspension from the
team—may strike some as disproportionate. Tr. of Oral
Arg. 31, 57. But that does not matter for our purposes.
State courts have policed school disciplinary decisions for
“reasonable[ness].” E.g., Burdick, 31 Iowa, at 565. And dis-
proportionate discipline “can be challenged by parents in
the political process.” Morse, 551 U. S., at 420 (THOMAS, J.,
concurring). But the majority and the parties provide no
textual or historical evidence to suggest that federal courts
generally can police the proportionality of school discipli-
nary decisions in the name of the First Amendment.
II
The majority declines to consider any of this history, in-
stead favoring a few pragmatic guideposts. This is not the
first time the Court has chosen intuition over history when
it comes to student speech. The larger problem facing us
today is that our student-speech cases are untethered from
any textual or historical foundation. That failure leads the
majority to miss much of the analysis relevant to these
kinds of cases.
6 MAHANOY AREA SCHOOL DIST. v. B. L.
THOMAS, J., dissenting
A
Consider the Court’s longtime failure to grapple with the
historical doctrine of in loco parentis. As I have previously
explained, the Fourteenth Amendment was ratified against
the background legal principle that publicly funded schools
operated not as ordinary state actors, but as delegated sub-
stitutes of parents. Id., at 411–413. This principle freed
schools from the constraints the Fourteenth Amendment
placed on other government actors. “[N]o one doubted the
government’s ability to educate and discipline children as
private schools did,” including “through strict discipline . . .
for behavior the school considered disrespectful or wrong.”
Id., at 411–412. “The doctrine of in loco parentis limited the
ability of schools to set rules and control their classrooms in
almost no way.” Id., at 416.
Plausible arguments can be raised in favor of departing
from that historical doctrine. When the Fourteenth
Amendment was ratified, just three jurisdictions had com-
pulsory-education laws. M. Katz, A History of Compulsory
Education Laws 17 (1976). One might argue that the dele-
gation logic of in loco parentis applies only when delegation
is voluntary. But cf. id., at 11–13 (identifying analogs to
compulsory-education laws as early as the 1640s); Pierce v.
Society of Sisters, 268 U. S. 510 (1925) (requiring States to
permit parents to send their children to nonpublic schools).
The Court, however, did not make that (or any other) argu-
ment against this historical doctrine.
Instead, the Court simply abandoned the foundational
rule without mentioning it. See Tinker v. Des Moines Inde-
pendent Community School Dist., 393 U. S. 503 (1969). Ra-
ther than wrestle with this history, the Court declared that
it “ha[d] been the unmistakable holding of this Court for
almost 50 years” that students have free-speech rights in-
side schools. Id., at 506. “But the cases the Court cited in
favor of that bold proposition do not support it.” Morse, 551
U. S., at 420, n. 8 (THOMAS, J., concurring). The cases on
Cite as: 594 U. S. ____ (2021) 7
THOMAS, J., dissenting
which Tinker chiefly relied concerned the rights of parents
and private schools, not students. 551 U. S., at 420, n. 8.
Of the 11 cases the Court cited, only one—West Virginia Bd.
of Ed. v. Barnette, 319 U. S. 624 (1943)—was on point. But,
like Tinker, Barnette failed to mention the historical doc-
trine undergirding school authority. Not until decades later
did the Court even hint at this doctrine, and, then, only as
an aside. See Fraser, 478 U. S., at 684.
The majority does no better today. At least it acknowl-
edges that schools act in loco parentis when students speak
on campus. See, e.g., ante, at 5. But the majority fails to
address the historical contours of that doctrine, whether the
doctrine applies to off-campus speech, or why the Court has
abandoned it.
B
The Court’s failure to explain itself in Tinker needlessly
makes this case more difficult. Unlike Tinker, which in-
volved a school’s authority under a straightforward fact
pattern, this case involves speech made in one location but
capable of being received in countless others—an issue that
has been aggravated exponentially by recent technological
advances. The Court’s decision not to create a solid founda-
tion in Tinker, and now here not to consult the relevant his-
tory, predictably causes the majority to ignore relevant
analysis.
First, the majority gives little apparent significance to
B. L.’s decision to participate in an extracurricular activity.
But the historical test suggests that authority of schools
over off-campus speech may be greater when students par-
ticipate in extracurricular programs. The Lander test fo-
cuses on the effect of speech, not its location. So students
like B. L. who are active in extracurricular programs have
a greater potential, by virtue of their participation, to harm
those programs. For example, a profanity-laced screed de-
livered on social media or at the mall has a much different
8 MAHANOY AREA SCHOOL DIST. v. B. L.
THOMAS, J., dissenting
effect on a football program when done by a regular student
than when done by the captain of the football team. So, too,
here.
Second, the majority fails to consider whether schools of-
ten will have more authority, not less, to discipline students
who transmit speech through social media. Because off-
campus speech made through social media can be received
on campus (and can spread rapidly to countless people), it
often will have a greater proximate tendency to harm the
school environment than will an off-campus in-person con-
versation.
Third, and relatedly, the majority uncritically adopts the
assumption that B. L.’s speech, in fact, was off campus.
But, the location of her speech is a much trickier question
than the majority acknowledges. Because speech travels,
schools sometimes may be able to treat speech as on campus
even though it originates off campus. Nobody doubts, for
example, that a school has in loco parentis authority over a
student (and can discipline him) when he passes out vulgar
flyers on campus—even if he creates those flyers off cam-
pus. The same may be true in many contexts when social
media speech is generated off campus but received on cam-
pus. To be sure, this logic might not apply where the on-
campus presence of speech is not proximately connected to
its off-campus origin—as when a student “wholly acci-
dental[ly]” brings a sibling’s sketch to school years after it
is created. Porter v. Ascension Parish School Bd., 393 F. 3d
608, 615, 617–618 (CA5 2004). This break in proximate
causation might occur more often when a school prohibits
the use of personal devices or social media on campus. See
Tr. of Oral Arg. 68–69. But where it is foreseeable and
likely that speech will travel onto campus, a school has a
stronger claim to treating the speech as on-campus speech.
Here, it makes sense to treat B. L.’s speech as off-campus
speech. There is little evidence that B. L.’s speech was re-
ceived on campus. The cheerleading coach, in fact, did not
Cite as: 594 U. S. ____ (2021) 9
THOMAS, J., dissenting
view B. L.’s speech. She viewed a copy of that speech (a
screenshot) created by another student. Ante, at 2. But,
the majority mentions none of this. It simply, and uncriti-
cally, assumes that B. L.’s speech was off campus. Because
it creates a test untethered from history, it bypasses this
relevant inquiry.
* * *
The Court transparently takes a common-law approach
to today’s decision. In effect, it states just one rule: Schools
can regulate speech less often when that speech occurs off
campus. It then identifies this case as an “example” and
“leav[es] for future cases” the job of developing this new
common-law doctrine. Ante, at 7–8. But the Court’s foun-
dation is untethered from anything stable, and courts (and
schools) will almost certainly be at a loss as to what exactly
the Court’s opinion today means.
Perhaps there are good constitutional reasons to depart
from the historical rule, and perhaps this Court and lower
courts will identify and explain these reasons in the future.
But because the Court does not do so today, and because it
reaches the wrong result under the appropriate historical
test, I respectfully dissent.