By Amy Howe
on April 27, 2021
at 1:37 pm
Brandi Levy, suspended from her cheerleading team after sending a barbed Snapchat message, poses outside her high school. (Danna Singer / provided by the ACLU)
In 1969, the Supreme Court in Tinker v Des Moines Independent Community School District ruled that public school officials could regulate speeches that would significantly disrupt the work of the school. On Wednesday, the judges will examine whether Tinker also applies to speeches made by students off campus. In the internet era where cell phones and social media are ubiquitous and many schools and parents are concerned about cyberbullying, the court ruling in Mahanoy Area v. BL will become a landmark decision on student language.
The Supreme Court case began in 2017 when 14-year-old Brandi Levy failed to join her high school cheerleading team. On a Saturday when she was out of school, Levy used social media – specifically the Snapchat app, where she posted a picture of herself and a friend with her middle fingers raised along with the headline, “Fuck School Fuck Softball Fuck Cheer.” everything. “
Much of the appeal of Snapchat stems from the fact that messages known as “snapshots” can only be viewed on the app for 24 hours. But, as Levy learned the hard way, the internet is forever. Another cheerleader took a screenshot of Levy’s snapshot and showed it to a cheerleader. After the cheerleading coaches discovered that Levy’s Snap was against team and school rules, Levy was suspended from the cheerleading team for a year.
Levy and her parents went to federal court in Pennsylvania where they argued (among other things) that the suspension violated the first amendment. A federal district court agreed, and the U.S. 3rd Circuit Court of Appeals upheld that decision. The appeals court rejected the school board’s argument that Tinker applies to off-campus speeches made by students. The school district went to the Supreme Court last summer and asked the judges to weigh up. They agreed to start the case in January.
The school district arguments
In its submission to the Supreme Court, the school district claims that the Internet, and especially social media, has “blurred” the distinction between on-campus and off-campus speaking. Therefore, the school district stresses, a school should be able to regulate the language addressed to the school and disrupt the school environment, wherever it originates.
The school district adds that schools have always had and used the power to discipline language that disrupts the school or harms other students wherever the source is. In fact, laws in the District of Columbia and at least half of the states require schools to deal with disruptive harassment or bullying, even if done off-campus, while school districts in the rest of the states have codes that denote harassment and bullying forbid off campus. In addition, the school district provides that federal laws also provide an obligation for schools to take action against discrimination and harassment if it interferes with students’ access to education without limiting that obligation to conduct on campus.
The school district rejects any suggestion that the ability to regulate language off campus poses the risk of censorship. Schools, emphasizes the district, can regulate the speech off campus “only if the students direct the speech to the school environment”. The decision of the court in Tinker, writes the school district, “also forbids schools to punish speeches – whether on campus or outside – because they do not agree with the message expressed.”
The student’s arguments
In her Merit Briefing, Levy urges the court to establish a clear line between speaking “at school” – on campus or at school events, and while the student is walking to and from school – and speaking does not pull this. She explains that restrictions on language content will be considered unconstitutional even if the speech is offensive and even if the restrictions are aimed at protecting children. However, the Supreme Court in Tinker allowed schools to regulate speaking in school, as the school environment is special. Among other things, schools are responsible for students when they are in school.
Although the tinker rule works when confined to school, Levy admits that the possibility that schools use it outside of school would open Pandora’s box with problems. According to the rules of the school district, the students would effectively be exposed to the “vague standard of interference from Tinker” 24 hours a day, 365 days a year. This prospect would discourage students from “saying anything that school authorities consider to be controversial, critical or politically incorrect and therefore disturbing”. And students who are disciplined for important off-campus speeches – for example, photos on Twitter about the lack of social distancing in school hallways during the COVID-19 pandemic or criticism of racist messages from other students – often don’t have the money to do so Court to challenge the punishment.
The school district’s efforts to limit its rule to language addressed to the school are “no limitation at all,” according to Levy. In practice, this would always apply when a student speaks to another student or when a student talks about the school, as this case shows: Levy only sent her message on Snapchat to a self-selected group of “friends”. None of these “friends” conveyed the message to the school. someone else did it. But the school district claims the snapshot was “addressed” to the school because Levy spoke of “cheers” and “school”.
The expansion of social media and online communication also doesn’t justify extending Tinker to off-campus speech, Levy tells judges. Indeed, although the school district claims the internet has blurred the line between on-campus and off-campus language, its proposed rule would allow schools to restrict all types of off-campus language – not just language that happens online . Levy also assures judges that they don’t need to expand Tinker to ensure schools can address issues such as threats, harassment and bullying if they occur off-campus but impact on campus. These problems, Levy points out, can be addressed with traditional First Amendment doctrines.
The views of other groups
Because of its importance, the case has attracted a large number of “friends of the court” letters.
The federal government has submitted a brief attempting to strike a middle ground. Acting Attorney General for the Biden administration, Elizabeth Prelogar, contends that the Supreme Court cases involving student speech “did not focus on the consequence of student speech on other students and school activities the exact time or place where the speech will take place “. And, as a rule, according to Prelogar, school officials cannot hold students accountable for their off-campus speech. However, she continues that the 3rd Circle wrongly believed that schools can never discipline students for their off-campus speech. An off-campus speech that might be considered a school speech suggests a speech that threatens the school community or that is intentionally aimed at specific members, functions, or programs of the school community, according to Prelogar. Stressing that the federal government would not weigh whether Levy’s snapshot falls into one of these categories or whether it is disruptive, Prelogar urges the judges to invalidate the 3rd circuit decision and send the case back for the lower court to unite We can look further at the case in the light of these principles.
The Cyberbullying Research Center supports the school district and informs judges that “the means and methods of modern bullying are much more sophisticated because of the Internet and that online bullying (” cyberbullying “) is an increasingly worrying phenomenon.” Although in this case it is around Cheerleading goes, the center notes that “there is a lot more at stake in this case”: “Schools’ ability to combat bullying is literally a matter of life and death for around 56 million children” in public schools in the US UNITED STATES .
Brief support for Levy comes from the conservative Alliance Defending Freedom, which states that “religious students are often persecuted for their speech, both on and off campus”. The ADF urges the judges to “make it clear that schools cannot regulate language based on the effects of language on their listeners”. In another letter in support of them, college athletes advocacy groups argue that the school district’s proposed rule would “result in an” open season “for whistleblowers in high school and college sports” because they are under the school district rule on the sports program a university complained would be “a criminal act of” disruption “which is not protected by the first amendment.”
This article was originally published by Howe on the Court.