By Amy Howe
on April 28, 2021
at 3:28 p.m.
Lisa Blatt advocates the Mahanoy Area School District (Art Lien)
The Supreme Court appeared to be in conflict on Wednesday over a school district request to discipline students for speaking outside of school. Some judges expressed concern over whether allowing schools to regulate language off campus might mean too much language for young people, while others feared that – especially in the Internet age – an opposite rule could reduce the harmful effects of some language too little weight, like cyberbullying, can occur in school even if it happens off-campus. After nearly two hours of hearing, the landmark First Amendment decision that many had expected seemed much less certain, especially given judges’ widespread skepticism as to whether the student at the center of the case should have been disciplined at all .
The case, Mahanoy Area School District v BL, was filed by Brandi Levy, who was a sophomore at a Pennsylvania public high school in 2017 when, to her disappointment, she failed to form the university’s cheerleading team. Levy decided to take away her frustration with a “snapshot” – a message on the social media app Snapchat – in which she took a picture of herself and a friend with raised middle fingers along with the caption “Fuck School Fuck Softball Fuck Cheer” published fuck everything. “
Levy’s snapshot was visible to roughly 250 of her friends on Snapchat for 24 hours. However, a screenshot of the snapshot was sent to a cheerleader who suspended Levy from the team for a year because the snapshot violated team and school rules.
Levy and her parents went to federal court arguing that their suspension violated the first amendment. When the lower courts agreed, the school district asked the Supreme Court to consider what the judges had agreed earlier this year.
The question before the court on Wednesday was whether the 1969 Supreme Court ruling in the Tinker v Des Moines Independent Community School District, which allows public school officials to regulate the language that would significantly disrupt the work of the school, on the speech of Applies to students off campus.
Advocate Lisa Blatt spoke out in favor of the school district and told judges that Tinker should apply off-campus as speaking off-campus can also cause disruption, especially when it comes to social media. “Time and geography are meaningless,” emphasized Blatt on the Internet.
However, Judge Samuel Alito suggested that the school district rules were too vague. Alito noted that Blatt had reassured judges that schools could not discipline students for speaking outside of school on topics such as politics or religion, and that the key question was whether the speech was “targeting” the school, saying, “Me have no idea what that means. “If the question of whether the speech is aimed at the school depends on the context in which the speech is taking place, Alito continued,” I am concerned about how it should be implemented Schools outside of school are supposed to have authority under Tinkers, ”he concluded, the rule must be clear.
Chief Justice John Roberts made a similar point on a question addressed to Malcolm Stewart, the US assistant attorney general who argued on behalf of the federal government in support of the school district. “I wonder how you analyze,” Roberts asked if the speech is “addressed” to a school and therefore something for which a student could be disciplined. Roberts noted that for most teenagers, their friends are their classmates. Is something they send to their friends on social media, Roberts asked, “addressed to a school”?
Judge Elena Kagan also feared that under the rules proposed by the school district and the federal government, a wide range of off-campus speeches would be fair game for school discipline. She asked Stewart if Levy’s snapshot was “School Speech”. When Stewart said it was likely, Kagan stated that essentially all of the speeches would be “because this is pretty general.”
Though the judges were concerned that the school district rule was too vague or extensive, they also challenged attorney David Cole, American Civil Liberties Union, who represented Levy. Several judges suggested that in practice it can be difficult and not always desirable to draw a clear line between on-campus and off-campus speech.
Roberts wanted to know how modern technology can reconcile a bright line between the two types of language. If a snapshot was posted from the park but read in the school cafeteria, he asked Cole if it was considered “on campus” or “off campus” to see if the school could discipline a student for it.
Cole replied that the key question was whether the student was under the supervision of the school or at a school-approved event. If so, argued Cole, the school has the authority the Supreme Court has already given it, and the internet doesn’t change that. If anything, Cole points out, the internet underlines the importance of ensuring that children have free speech outside of school, as they need to be able to share freely without worrying about someone getting their messages in the school reads and they open to discipline as a school result.
Roberts didn’t seem convinced. No matter how disturbing, Roberts asked if a student’s speech is off-campus or on Snapchat, a school has to tolerate that speech because it cannot take action against the student?
Justice Clarence Thomas reiterated Roberts’ skepticism about drawing a clear line between on-campus and off-campus speech in the age of social media. A student could send the same messages with the same effects, Thomas said, from a local 7-11 or over the weekend, but the messages still had a persistence that could be seen in class. During your test, Thomas told Cole, an email sent over the weekend and opened in class on Monday morning would not be considered a “student speech” as the speaker would not have been under the supervision of the school.
Kagan denied Cole’s interpretation of Tinker as a “geographic test”. While it could be read that way, the court’s decision could also be understood to mean that schools can discipline students on campus if the school’s learning environment so requires. If things outside of school can be disruptive, Kagan asked, why shouldn’t the school have an opportunity to address them?
Kagan (along with Justice Sonia Sotomayor) also raised a similar problem: the prospect that if schools fail to discipline off-campus speech, it will affect their ability to tackle real issues like cyberbullying. Kagan acknowledged that Cole had offered other options, such as school codes of conduct and state and state laws, to resolve such problems. And it may well be, she noted, but schools have more leeway to address these issues than other government officials. As an example, Kagan cited a website created by boys at a school to sort girls at school by their appearance or to discuss their sexual activities. “We wouldn’t put people in jail for that,” Kagan remarked, but it seems like a school should be able to intervene.
In addition to the court’s struggles to determine the appropriate rule in this case, there was considerable skepticism about whether the school should have punished Levy for her snapshot even if Tinker applied for an off-campus speech. After telling Blatt that neither side of the test was “easy to use”, Judge Amy Coney Barrett pointed out that nothing in the first amendment prohibits “gentle discipline”: instead of kicking Levy off the team for a year, struck Barrett pretended to warn her.
Judge Stephen Breyer described Levy’s snap as “unattractive swear words” off campus. However, Breyer went on to see no evidence that the snapshot caused the kind of “material and material disruption” Tinker needed. If Levy can be punished for taking this snapshot, he suggested, “Any school in the country would do nothing but punish.”
Sotomayor pointed out that the cheerleader spent a few minutes talking to other students about Levy’s snapshot. How, asked Sotomayor, is that a “significant glitch,” and how can Levy’s snapshot be viewed as something intended to inspire disrespect if Levy puts it on an app that should go away after 24 hours?
Alito reiterated that when the Supreme Court ultimately weighs the broader issues in Levy’s case, it should set clear rules on freedom of expression. However, Alito drafted a narrower path that would not require the court to address the broader issues at this point. The court, Alito suggested, could reiterate that Tinker applies in school without saying more about a school’s authority to discipline off-campus speech. And the court could make it clear that while the comments in Levy’s snapshot are “colorful language,” they are limited to not liking the cheer team and their private softball team, and that the school cannot discipline Levy for having them has no respect for the school.
Judge Brett Kavanaugh, who coaches girls’ basketball in his spare time, agreed with colleagues that Levy’s year-round suspension appeared to be “some kind of overreaction” to the cheerleading coach. Kavanaugh reminded listeners that the great basketball player Michael Jordan told the story when he was inducted into the Basketball Hall of Fame when he was inducted into the Basketball Hall of Fame. Athletes in the heat of competition.
In his interrogation for Stewart, Kavanaugh proposed another close decision in which the court – contrary to the decision of the U.S. Court of Appeals for the 3rd Circuit – would rule that the first change did not categorically prevent schools from accepting students for their off-discipline to discipline. Campus speech. It could also be important, Kavanaugh added, that Levy’s case involves discipline for her speech in connection with a team rather than the school as a whole. The court would then send the case back to the 3rd circuit for another look.
Stewart replied that he thought such a decision would be “enough” to resolve this case. We’ll know by summer if Kavanaugh’s colleagues agree.
This post was originally published on Howe on the Court.