Legal Forum
A New Rule on Controlling Student Speech? The U.S. Supreme Court will hear oral arguments in early February 2021 on a case where a student was punished because of her speech on social media. The Supreme Court has delivered opinions regarding student speech only four times in our nation’s history, each time crafting a new rule regarding the permissibility of school administrators to punish a student when the administrator believes the student has violated school rules. The case, B.L. v. Mahanoy Area School District, 964 F.3d 170 (3rd Cir. 2020), S.Ct. Case No. 20-255, is the subject of this commentary. A decision is not expected before June of 2021. Before 1969, student speech was just another student behavior which could be punished under school rules, with no distinction between speech behaviors and action behaviors. But at the height of the Viet Nam conflict, Dr. David Dagley the Court held in Tinker v. Des Moines Independent Community School Dr. Dave Dagley serves as professor District, 393 U.S. 503 (1969), that school administrators could not punish emeritus of educational leadership student speech unless the administrators could show that the speech with the University of Alabama. would cause a “material and substantial disruption,” which was originally Dagley holds the PhD degree from the conceived as a fairly high standard. Three later cases provided additional University of Utah and the JD degree rules, which were categorical exceptions to Tinker’s higher standard. from Cumberland Law School. He has In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the served as a teacher, principal, assistant Supreme Court permitted school administrators to punish student speech superintendent, superintendent, and that was “obscene, profane, lewd, indecent, vulgar, or plainly offensive.” school board attorney. Dagley is a The lower courts have taken this rule to mean that school administrators frequent presenter at CLAS events on could control student speech, in which the administrator views the speech various legal topics. as sexual speech or innuendo. In Morse v. Frederick, 551, U.S. 393 (2007), the Supreme Court extended the Bethel rule, to permit school He has also been a long-time contributor administrators to control student speech, in the school setting or at to this publication. student activities, which the administrator views as being drug-related speech. A fourth case originated in a situation where a principal stepped in to edit two articles out of a school newspaper. In Hazelwood School 24
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