Off-campus speech vs. schools’ authority

Schuylkill County cheerleader’s Snapchat message brings issue into courtroom

Brandi Levy was feeling the stress of being a high school freshman in May 2017 when she fired off an F-bomb-laden Snapchat post to a few hundred of her followers.

Frustrated at not making the varsity cheerleading squad or getting the softball position she wanted and worried about final exams, the Schuylkill County teen posted a picture of herself and a friend with middle fingers extended and the text, “F—school f—- softball f—- cheer f—- everything.”

Although Levy sent the post outside of school on a Saturday afternoon using her personal cellphone, Mahanoy Area School District suspended Levy from cheerleading after a coach saw her post.

This month, the U.S. Supreme Court will hear arguments on whether school officials overextended their authority to police student speech by punishing Levy for what she wrote off

school grounds and outside of school hours.

While the stakes for Levy and the school district may seem trivial, civil rights advocates say a ruling in favor of the school district would bring a “tectonic shift” in young people’s right to free speech.

“What Brandi said was maybe not so important as an emotional outburst but what is important is how the schools seek to censor young people’s off-campus speech,” said Vic Walczak of the American Civil Liberties Union of Pennsylvania, which represents Levy and her parents. “Free speech rights everywhere will be reduced to what they have at school.”

Educators say social media blurs the line between school and the outside world, and their ability to monitor and regulate what students say from beyond the metaphorical schoolhouse gate is crucial to maintaining safe and secure learning environments. They argue that the federal appeals court that found educators’ authority to censor disruptive speech doesn’t apply outside of school was wrong.

“It can’t be that educators and schools are completely hogtied when it comes to activity, no matter how threatening or harmful, that might occur off-campus or online,” said Jason Walta, senior counsel at the National Education Association, which filed a friend of the court brief in the case.

Attorney Lisa Blatt, who represents Mahanoy Area School District, said she could not discuss the case.

The case is also monumental because it will be only the fifth case on student speech the Supreme Court has heard in the last 52 years. It has the potential to recast the court’s foundational decision that while students do not shed their right to free speech at the schoolhouse gate, educators have limited authority to restrict what they say inside the school wall.

In that 1969 decision, the Supreme Court ruled in favor of five students, including siblings Mary Beth and John Tinker, suspended by the Des Moines school district for wearing black armbands to protest the Vietnam War. The court found the First Amendment applies to public schools and that school officials may censor students only when their expression is disruptive to the educational process.

The Supreme Court has since found school officials can also limit student speech that is lewd or vulgar, that is inconsistent with a school’s educational mission and, most recently, that contains a message promoting illegal drug use when it upheld an Alaska high school student’s suspension for displaying a banner that read “Bong Hits 4 Jesus.”

In a closely watched local case, the high court declined to hear an appeal in 2014 by Easton Area School District after the 3rd U.S. Circuit Court of Appeals found middle school students wearing breast cancer awareness bracelets with the message “I (love)Boobies!” did not run afoul of the restriction on lewd or vulgar speech because they promoted a social awareness of a disease.

There has always been a brightline rule that school officials may not police student speech outside of school or school-sponsored activities, such as field trips or sporting events, said Robert Richards, director of the Pennsylvania Center for the First Amendment, which has also filed a brief in the Mahanoy Area case.

“Once you’re off campus, you have the same speech rights as adults in similar situations,” Richards said.

Mahanoy Area School District argues that schools have always had the ability to discipline students for off-campus speech to prevent on-campus disruption. While the Tinker decision limits censorship of student speech to that which causes disruptions in the classroom, it places no limit on where the offending speech takes place. It argues that the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, is the only federal appeals court to rule that the Tinker decision doesn’t apply outside of a school setting.

The district argues that fear of censorship doesn’t warrant a hard limit on schools’ ability to discipline students for things they say or write outside school. Other legal principles such as due process of law and fair notice that certain expression is prohibited guard against invasion of students’ privacy at home. Further, the Tinker decision bars schools from disciplining students because of disagreement with what they say.

The district also argues that preventing schools from policing off-campus expression would throw into chaos laws across the country requiring educators to address harassment, bullying or discrimination that infringes on other students’ rights or prevents them from accessing educational resources.

Organizations such as the National Women’s Law Center, the Lambda Legal Defense and Education Fund, and the Anti-Defamation League have sided with the school district to the extent that policing off-campus speech is necessary to prevent harassment and discrimination of marginalized groups, but argue that restricting speech that could cause disruption would interfere with the right to protest and could lead to disparate discipline.

Lawyers for Levy and her parents argue that the disruption standard set in the Tinker case is so broad that it would be unconstitutional if applied outside of school and limiting it avoids interference with parents’ authority over their children.

“Do you want the principal coming in and telling your kids what they can say at the dinner table?” Walczak asked.

Expanding the Tinker decision to cover out-of-school speech is unnecessary because threatening or inciteful speech is already prohibited under exceptions to the First Amendment, Levy’s lawyers argue. And they argue the school district’s proposal to limit restrictions on outside speech to anything that is directed at the school is no limitation at all because so much of what students discuss is related to school.

Levy’s lawyers also argue that if the court decides to extend the Tinker decision to off-campus speech it should limit it to situations where a student intended to cause a disruption.

Darpana M. Sheth of the Foundation for Individual Rights in Education said the case puts the future of students’ free speech rights at stake because so much of their communication is in virtual spaces that can be viewed on campus.

“Students do not surrender their First Amendment rights just because they log on to their personal social media,” she said.

Sheth said it’s imperative that the Supreme Court rules in favor of Levy and provides clear guidance on students’ free speech rights because many are routinely punished for expression such as posting pictures of themselves wearing all black clothing for a Black Lives Matter protest or posing in front of a Trump campaign sign.

Robert Corn-Revere, who filed a friend of the court brief for Mary Beth and John Tinker, said the approach Mahanoy Area School District proposes would have resulted in a different outcome in their 1969 case. He noted that the decision to discipline them was made before they appeared at school wearing the armbands after word of a meeting in one of the students’ homes got to the school board.

“If John and Mary Beth Tinker were in school today they almost certainly would have communicated with their schoolmates using social media,” Corn-Revere said. “They might have posted a picture of themselves wearing a black armband on Facebook.”