Practice Area: Education Law

By an 8-1 majority, the United States Supreme Court blocked a Pennsylvania school district from punishing a cheerleader for a profane off-campus, off-hours outburst on social media. Mahanoy Area School District v. B.L., _ S. Ct. __, 2021 WL 2557069, 2012 U.S. Lexis 3395 (June 23, 2021). The Court’s decision sets limits on how far a public school district can punish a student for off-campus speech. The decision applies only to state and local public institutions. Justice Breyer wrote the Court’s opinion. Justice Alito wrote a long concurring opinion with numerous examples of situations in which a school district either may or may not regulate student speech.

B.L. a high school student, was angry at not having been chosen for the varsity cheerleading squad or the softball team. B.L. felt that she had been rejected unfairly. She posted a Snapchat message including the “F-bomb” directed toward school, cheerleading, softball, and “everything”. The posting took place off campus and outside school hours. The posting did not identify B.L.’s school or any individual at the school. But B.L.’s Snapchat message went to other students, some of whom implicated her. The high school then suspended B.L. for a year from the junior varsity cheerleading squad.

B.L. and her parents sued to enjoin the school from barring B.L. from the JV cheerleading squad. The plaintiffs alleged that the School District’s actions violated B.L.’s First Amendment rights to freedom of speech. The School District lost before both the District Court and the Third Circuit. See Mahanoy Area School District v. B.L.,964 F.3d 170 (3d Cir. 2020). The Third Circuit held that the School District did not have the ability to discipline a student for off-campus speech that was outside school-owned, operated or supervised channels and that could not be reasonably interpreted to bear the school’s imprimatur.

After accepting the case for review, the Supreme Court upheld the lower courts and ruled in B.L.’s favor, with only Justice Thomas dissenting. Justice Breyer gave three important reasons for differentiating between the School District’s inability to regulate off-campus speech and ability to control on-campus speech. First, a public school district does not stand in loco parentis for school students who are away from campus. Put more simply, parents are usually responsible for children once classes end and the student leaves campus. (This factor differs for private schools where the First Amendment does not apply, and for private boarding schools where the school is recognized as being in loco parentis during the student’s tenure at the school .) Second, a school district’s regulation of both off-campus and on-campus student speech might lead to a situation where a student had no rights of speech at all. Third, the schools have an interest in promoting free expression, even if the communication is unpopular.

The Court held that the School could not show that the disruption to School operations warranted the suspension. Finally, in recognition of the apparent triviality of not making the cheerleading squad and the student’s distasteful comments, the Court stated, “Sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Notably, the Supreme Court sided with the student on narrower grounds than the Third Circuit. The Supreme Court did not agree that the schools’ power to regulate student speech always disappeared when the speech takes place off campus. Schools would still have an interest in regulating severe bullying or harassment, threats aimed at teachers or students, speech related to academic and lesson matters, and speech that created breaches of security.

What can an educational administrator do when a vendor performs poorly under a long-term contract?  Unless the college or school has tightened its procedures for contract drafting and approval, the answer may be “not much”.  More than a few educational institutions have tried to cancel contracts with underperforming suppliers - ranging from yearbook publishers to laundry companies to phone vendors - only to confront a form vendor contract lasting far into the future and providing no right to cancel.  Aside from multi-year terms, these contracts may have automatic renewal clauses, technical jargon, and microscopic print.  A non-administrative employee, such as a yearbook or drama faculty advisor or cafeteria manager, may have signed the contract for the school.  This employee may have inadvertently bound the school for years, since the vendor will say (with good reason) that the employee had apparent authority to act for the school.

In this situation, a school has two options - one short-term and one long-term.  The short term option is to renegotiate the specific contract or cancel the contract and litigate a breach of contract case.  Litigation will be costly, but the school will have taken a stand that it will no longer acquiesce to burdensome agreements.

The longer term, practical option is to tighten up on the procedures for drafting and signing contracts.  Here are some steps that colleges and schools can take:

• Centralize all review, approval, and signature of contracts with the business office.
• Notify both outside vendors and in-house personnel that business office approval and signature are required for all contracts and that all non-conforming future contracts will be invalid.
• Insist on shorter term contracts with rights to cancel at will, or for cause, or for either party’s financial distress.
• End all “evergreen” clauses that renew the agreement automatically if a party misses a deadline for advance notice of non-renewal.
• Simplify the contract by requiring vendors to put all terms in one document, rather than having separate purchase, license, and service agreements.
• Resist the vendor’s attempt to burden-shift to the institution through warranty disclaimers or indemnity clauses.
• Insist that the contract be governed by your home state law. The contract will be performed at your site, and should not be subject to another state’s laws.
• Insist that all disputes be resolved in your jurisdiction, preferably by arbitration, rather than in a remote location such as the vendor’s home state or city.
• Use your own standard contracts for outside speakers, concerts, or hosted events such as weddings.
• Preserve the school’s rights to use intellectual property, such as the right to stream or rebroadcast or copy published items.

It’s also important to make sure that contracts are in plain English.  Pennsylvania’s plain English law applies only to consumer contracts, but this limitation should not prevent a college or school from insisting on a clear, readable contract.  A clear, well written contract should address the basic questions of who (the parties’ identities), why (the reasons for the contract, generally in the recitals), what each party will do, when and where the parties’ performance will take place, and how the goods and services will be delivered and paid for.  Then the contract should address these same questions if it becomes necessary to end the relationship.  Finally, the contract should specify how notice is given, whether the contract may be assigned, and how to amend the agreement, and should state that the written contract is the parties’ entire agreement that supersedes all other understandings.

Most educational institutions are either government units or independent nonprofits, responsible to either taxpayers or donors (as well as accrediting and licensing agencies).  Educational institutions are also businesses, whether or not they regard themselves as such.  Many colleges and schools are the largest employers in their geographic areas.  In addition to imposing cost controls through the bidding process, it makes sense to standardize and streamline the contracting process, so the institution follows sound business practices and is on a level playing field with all its suppliers.

If you have questions about Education Law or vendor contracts, please contact Thomas D. Rees at (610) 275-0700 or trees@highswartz.com. The experienced lawyers in our Education Law practice provide a full range of legal services to educational institutions in Bucks and Montgomery counties, ensuring that our clients can focus on their primary mission.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.