After Supreme Court win, student free speech rights still in danger
On June 23, 2021, the Supreme Court issued its decision in Mahanoy v. B.L., ruling for the first time on whether public schools can constitutionally regulate off-campus student speech.
The court held that high school student Brandi Levy was unconstitutionally disciplined by Mahanoy Area High School in Pennsylvania after she posted a profanity-laced Snapchat rant when she failed to make the varsity cheer squad, proclaiming “f— school f— softball f— cheer f— everything.” Despite granting Levy a historic First Amendment victory, the decision leaves students and their parents in limbo as to when, exactly, schools can reach into their homes, their personal social media, or their leisure activities to punish young people for what they say.
This uncertainty is chilling for young people who, particularly in middle and high school, are experimenting and evolving in their ability to express themselves. They need the space to do this on their own time — so long as it is lawful — without facing retribution from their schools. But the Justices in the Mahanoy case declined to offer any clear line-drawing about when off-campus speech comes within the school’s reach, offering only this vague guidance:
Schools bear a “heavy burden” to justify interference with political or religious speech.
Schools have a duty to protect students’ right to express unpopular viewpoints.
Parents usually have more authority than schools to regulate off-campus expression.
These principles leave an ocean of gray area and will not prevent schools from wrongly punishing students. Consider the following examples.
In Georgia, a Troup County student was expelled for “gang-related” conduct after he posted his rap video on YouTube that was paid for and filmed in the presence of his mother on a weekend. The school took issue with some of the hand gestures displayed in the video and the fact that the student was holding what appeared to be a hand gun. The Mahanoy case provides no clear answer as to whether the school overreached, other than to suggest that the mother’s approval of her son’s artistic expression should have carried significant weight.
Also in Georgia, a North Paulding High School student was suspended for posting on her Twitter account, after school hours, images captured on her personal cell phone of crowded school hallways during the COVID-19 pandemic that a school superintendent described as “criticizing our reopening efforts.” Would this be considered “off-campus” speech since the images posted were taken at school? Does critique of a school’s response to a public health crisis qualify as “political” speech? These questions are still uncertain.
There are many more such examples with no definite resolution after the court’s decision. A Michigan high school senior was suspended for posting on social media a picture of dirty, yellow-ish tap water running from a school bathroom sink. A Hispanic student in Massachusetts was suspended for “posting on his Facebook page that racists should not be teaching Spanish,” even though he did not name his school or identify any specific teachers.
In some of the foregoing scenarios, school authorities eventually rescinded students’ punishments after the situation received national media coverage. In others, the students sued their schools. But for every case where a student’s off-campus speech rights are eventually vindicated, there are many others where the trampling of rights goes unredressed. This is not healthy for young people’s development or for our ideals of a society in which self-expression is cherished and parents retain core responsibility for their children’s conduct outside of school.
Schools, students and parents need clear guidance, or the parameters of what students can and can’t say when outside of school will continue to be chillingly unpredictable. We should therefore celebrate that the Mahanoy case affirmed Brandi Levy’s right to profane free expression, but recognize that the larger fight for student free speech is far from won.