WASHINGTON – Maybe not the tallest challenge the Supreme Court ever heard of it, but the outfit of a high school cheerleader who stood up after being cut off from the team is perhaps one of the most appropriate for anyone who has ever had a bad day.
And the case of Brandi Levy, who at the age of 14 shed a little money in a post on social media full of vulgar words aimed at her school, her team and “everything”, may end up as one of the most important court decisions on student speech in generation.
The country’s highest court, which will hear oral arguments on Wednesday, could decide whether schools can punish students for things they say off-campus, including social media websites that have become ubiquitous for American teenagers.
Civil liberties groups fear the court will turn schools into speech police, restricting students’ rights to the First Amendment. School districts oppose the need to be free to discipline off-campus speech that leaks into the classroom and locker room, including protecting students from violence that can escalate online and miles from the school yard.
The story begins when Levy, a sophomore in the Mahanoy Area school district of Pennsylvania, fails to get the university team to cheer. She went to Snapchat, encouraging her followers on the social networking site to “F –––– school f –––– softball f –––– cheer f –––– everything.” In case the message wasn’t clear, she included her picture and a friend – who were both off-campus at the time – raising her middle fingers.
Snapchat messages disappear alone – the posts are intended temporarily – but another student grabbed Levy’s message by grabbing the screen and showing it to the team’s coaches. Levy was kicked out of the junior university team and, after contacting school authorities, her parents sued the district in federal court.
“If I had to repeat it over and over, I probably wouldn’t have published it,” Levy, now a college freshman who plans accounting, admitted in an interview. “I feel like I just wouldn’t post it, but I’d still have the same feelings.”
At the heart was a student speech Tinker v. Monks, a turning point in a 1969 Supreme Court decision involving a group of students who wanted to wear black ribbons to protest the Vietnam War. The court confirmed that students do not miss freedom “in front of the school house”, but also ruled that schools can regulate speech in cases when it “materially disrupts” the work of the school.
The court’s question is whether that same standard applies to off-campus speech. U.S. Civil Liberties Union attorneys, who represent Levy in the case, say applying that standard outside of school would give principals the power to punish students even when they talk to their friends on the weekends.
“The fear is that expanding Tinker will allow schools to regulate what you might call socially useful speech,” said Witold “Vic” Walczak, legal director of the ACLU in Pennsylvania. “Anything that is critical, potentially offensive, politically incorrect, calls into question the status quo, is potentially disruptive.”
The Mahanoy School District declined to comment, but several groups representing teachers and school administrators pointed to the consequences of the “real world” if they are not allowed to discipline students for speaking off-campus. Several noted that most school children participated in classes at some point during the coronavirus pandemic.
Another problem that schools pose: bullying, which happens at school, but also online.
“The concern is how to protect young people, the young people who lead us, when the actions we engage in are linked to student speech which unfortunately can sometimes involve harassment and harassment, with very tragic consequences?” said Francisco Negrón, chief legal officer of the National Association of School Boards.
“It’s actually actually about how virtual reality for young people is no longer virtual nature,” Negrón said. “It’s just a reality.”
The Federal District Court ruled Levy in 2019, finding that – even if Tinker’s standard is applied off-campus – the speech she used was not disruptive enough to initiate disciplinary action. The U.S. Court of Appeals for the third round, based in Philadelphia, made a decision a step further, finding that Tinker did not refer to off-campus speech.
The unanimous opinion held that Levy’s message was “rude, rude and juvenile, just as we might expect from an adolescent.” But, the court said, “the primary responsibility for teaching civilization lies with parents and other members of the community.”
“By the way, we give school administrators the power to undo the expressions of students who are considered rude or offensive – which too easily metastasizes into the power of censorship of valuable speech and legitimate criticism,” the court wrote.
The Supreme Court is expected to rule on the case in June.