When 14-year-old Brandi Levy was not selected for the 2017 Mahanoy Area High School varsity cheerleading team, she vented her frustration on every modern teen’s venue of choice: social media. From a convenience store, Levy expressed her dismay with a Snapchat photo of her flipping off the camera. Along with the photo was the caption, “f— the school. . . . f— cheer, f— everything.” The school cheerleading captains soon learned about the post. The school district suspended Levy from the junior varsity team for one year. The resulting legal dispute in Mahanoy Area School District v. B.L. went all the way to the U.S. Supreme Court, which ruled 8-1 last month that the school district had violated Levy’s First Amendment rights.
Levy, represented by the American Civil Liberties Union, argued that the school had no right to punish her for something she said off-campus. Her case quickly garnered support from free speech advocacy and religious groups such as the Alliance Defending Freedom. The school’s choice to discipline Levy sparked an influx of amicus curiae briefs from such groups who expressed concern that a ruling in favor of the school could lead to prosecution of student religious beliefs.
The school district argued that districts have a history of regulating student speech off campus. Additionally, they contended, COVID-19 era online learning muddied the lines between on- and off-campus speech. Along with anti-bullying advocacy groups like the Cyberbullying Research Center, the school district argued that a decision in favor of Levy would weaken schools’ ability to discipline students for off-campus discrimination, harassment and bullying. In an amicus brief, the Biden administration’s Department of Justice emphasized that schools to comply with federal civil-rights statutes. Such statutes require schools to address harmful speech on the basis of sex, race or disability that may obstruct equal access to education.
Writing for the majority, Justice Stephen Breyer cited Tinker v. Des Moines Independent Community School District, a famous 1969 SCOTUS decision that protected the free speech of students who wore black armbands to school to protest the Vietnam War. The court affirmed that schools have a valid interest in regulating disruptive off-campus student speech. However, Levy’s post was made on a weekend, off-campus, on a personal cellphone and to her friends. It did not target any individual or name her school. Justice Breyer noted in his majority opinion that “[Levy] uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.” Because Levy’s speech was not “substantially disruptive,” the majority agreed that the school violated her First Amendment rights.
Breyer established a few guiding principles for schools to consider as they evaluate student-speech discipline. First, parents generally have the responsibility to discipline children off-campus. Furthermore, if schools could discipline all off-campus speech, they would have 24-hour jurisdiction over everything a child says. Breyer emphasized that schools have “an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” After all, he concluded, “America’s public schools are the nurseries of democracy.”
We generally do not recommend that most educators monitor student social media activity unless it is connected to a class or authorized extracurricular activity. Student reports of inappropriate social media activity targeting students or staff should be directed to deans or administrators. Education Minnesota’s legal department also has a training on this topic titled, “Cell Phones, Social Media, and Student Safety,” which members may request through their local or intermediate organization.
– Lindsay Lundeen
Lundeen is a law clerk at Education Minnesota