Mahanoy: Excerpts From Justice Alito's Concurring Opinion

 Justice Alito (joined by Gorsuch) added some helpful analysis:

1. "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 Independent 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 messages 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 student give the Commonwealth any greater authority to punish her speech?"

This is a brilliant way to look at the issue. It puts all the burden on the school to justify why the government can regulate the off-campus speech of a child simply because she happens to attend a public school.

2. "But when a public school regulates what students say or write when they are not on school grounds and are not participating in a school program, the school has the obligation to answer the question with which I began: Why should enrollment 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."

Pro Tip: If you don't wish to allow public school authorities to control the off-campus speech of your children consider writing a letter to school authorities expressly retaining your parental control when your children are off-campus and not participating in a school-sponsored activity (such as on line instruction). Children need discipline, but better to be grounded for a week by parents than to be suspended by school authorities and have a permanent disciplinary record on their transcripts.

3. "So how much authority to regulate speech do parents implicitly delegate when they enroll a child at a public school? The answer must be that parents are treated as having relinquished 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."

4. "At the other end of the spectrum, there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection...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 important 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 expresses ideas that are “offensive or disagreeable.”

So, what kind of speech does Alito believe lies within the authority of public school officials:

5. "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 activities 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 regulation of student speech while in school—the need for orderly and effective instruction and student protection—apply more or less equally to these off-premises activities."

So, Mahanoy leaves open many future fact patterns, but the Court strongly has indicated that the ability of public schools to regulate off campus speech of students is strictly limited. Parents, not government, have the primary responsibility of regulating the off-campus speech of their children.