Off Campus Student Speech After Mahanoy
Two students, in two different circuits, posted something ugly to a small circle of friends, from home, on their own time. Both were disciplined by their schools. One student's discipline was affirmed by a federal appeals court. The other's was not allowed to be thrown out of court before it was even examined, though that phrasing matters, because the court that revived his claim never decided he had actually been wronged. It decided only that he was entitled to try to prove it.
For decades the baseline rule for speech that reaches a school without originating there was the test set in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), asking whether school officials could reasonably forecast a substantial disruption to school activities. Mahanoy Area School District v. B.L. did not replace that test so much as decline to build a separate one for off-campus speech specifically. Justice Breyer's opinion, joined by eight of nine justices as to the result, held that a school could not punish a profane Snapchat rant about a roster decision, and gave three reasons off-campus speech ordinarily falls outside a school's authority: it is normally a matter for parents rather than schools, a school with round-the-clock jurisdiction over students' speech would functionally never let them off duty, and schools have their own reason to tolerate speech they dislike because of what they are supposed to be teaching about a free society. The opinion was explicit that these were considerations weighing against regulation in the ordinary case, not a rule announcing that off-campus speech is always beyond a school's reach; it named serious bullying or harassment targeting particular students, threats aimed at teachers or other students, failure to follow rules about schoolwork such as papers and computer use, and breaches of school security devices as areas where a school's interest might remain serious without ever deciding how any of them should come out. That reticence was deliberate. The Court had a narrow, sympathetic set of facts in front of it, an ordinary teenager's frustration about not making varsity, and every signal in the opinion suggests the justices wanted a rule that would not have to be stretched to cover the harder cases sitting just past the one they were deciding.
Lower courts inherited that unfinished business almost immediately, because the harder cases arrived within a year of the opinion itself.
The Ninth Circuit read that opening one way. In Chen v. Albany Unified School District, a student had kept a private Instagram account, shared with roughly a dozen classmates, that traded in racist images and captions targeting specific students and, in one post, a Black staff member pictured alongside a Black student with a noose drawn around each of their necks. Once screenshots began circulating at school, several targeted students said they could no longer concentrate in class. The panel affirmed judgment for the district, reaching for a test the circuit had already built before Mahanoy existed, asking whether the speech bore a sufficient nexus to the school's environment, and found that nexus easily satisfied given how foreseeable it was that content shared with over a dozen classmates would reach the school community it targeted. The court treated the harassment itself, not any single Breyer factor, as what took the case outside the zone of ordinary parental responsibility.
The Tenth Circuit, examining a different kind of ugliness, read the same opinion the other way. A student at a thrift store photographed friends in novelty hats and captioned the picture with a line about exterminating Jewish people, then shared it with a handful of Snapchat friends. No threat was made against any person. Nobody at the school was named or pictured. When the district expelled him and he sued, the district court dismissed his complaint outright. The Tenth Circuit reversed that dismissal, holding the complaint plausibly alleged a First Amendment violation: applying Mahanoy, the panel reasoned that a school ordinarily cannot claim in loco parentis authority over speech made off campus, outside school hours, unconnected to any school activity, and that a caption containing no weapon, no specific threat and no reference to the school or its students did not support a reasonable forecast of the kind of disruption Tinker requires.
Both panels were doing exactly what Mahanoy told them to do, weighing the same considerations against a different set of facts, and both would say the other simply had different facts in front of it. But the gap between the two records is narrower than the gap between the two outcomes. Neither post was aimed at a single classmate the way a threat would be; both were shared within a small private circle before spreading; both offended people who were never the stated targets of the message itself. What separated the results was which half of Breyer's opinion each court treated as doing the work: the Ninth Circuit's opinion is built almost entirely around the passage acknowledging that a school's interest can remain significant for off-campus bullying, while the Tenth Circuit's is built around the passage placing off-campus speech presumptively in parental hands absent a specific threat. Each court could fairly say it was following Mahanoy. Neither could fairly say the other was not.
A school administrator reading both opinions for guidance on the next ugly private post that surfaces would come away with something closer to a checklist than a rule: was a specific student or staff member named or pictured, was there language a reasonable reader could take as a threat, and did the circulation of the material happen because someone forwarded it or because it was always going to reach the school community regardless. None of those three questions was dispositive in either case standing alone, and a fact pattern that splits two out of three the way the Ninth Circuit's did and one out of three the way the Tenth Circuit's did offers no obvious formula for predicting which way a third circuit would go.
The Ninth Circuit's own losing student did ask the Supreme Court to take the case up; the petition was denied in 2023. No comparable petition ever reached the Court from the Tenth Circuit side, which was still at the pleading stage and had nothing final enough to appeal. A student posting something ugly from home is, right now, subject to two different First Amendments depending only on which circuit's schools she attends.