The Supreme Court ruled Wednesday that a public high school was in breach of the First Amendment by punishing a student – the swearing cheerleader you may have heard of – for a vulgar message she posted online while she was out the campus was.
However, this is more or less the only thing that the Supreme Court in the Mahanoy Area School District v. BL has established. Judge Stephen Breyer’s opinion on behalf of the court pays homage to the humility that recognizes the many tough questions this case raises and that specifically opposes solving most of it. As it turns out, it is difficult to decide how to apply the First Amendment to high school students, and the court seems to feel that it takes more time to think about how to do this in future cases.
The facts about BL are pretty simple. In 2017, Brandi Levy was a high school student (she graduated from high school while her case was working in court) trying for her school’s cheerleading squad. She didn’t make the team and was assigned to the junior university team. Shortly thereafter, she posted an angry message on Snapchat that included a picture of her and a friend holding up her middle fingers, along with the headline, “Fuck School Fuck Softball Fuck Cheer Fuck Everything.”
The important thing is that she posted this message on Snapchat outside of school hours and off campus. Even so, the school suspended her from the JV cheerleading roster for a year because of her Snapchat post. The question before the court was whether her post was protected by the First Amendment – and so she could not be punished for it.
The general rule for public school students speaking on campus was given in Tinker v. Des Moines Independent Community School District (1969) established. Under Tinker, students retain some freedom of expression while attending school, but those rights are restricted. A school can sanction speeches that “would significantly and significantly disrupt the work and discipline of the school”.
But it’s not at all clear how the First Amendment and Tinker apply to off-campus student speech, and lower federal courts have split at least four different avenues on this issue.
The question is also made particularly complicated by the advent of the internet and social media. The students undoubtedly thrashed out for not forming a college team as long as there were college teams, but in the past these angry outbursts were not heard by anyone who wasn’t around.
Now, if a student attacks their cheerleading coach – or if they threaten a teacher or a classmate – they can do so online in a format that can be kept forever, or at least for many hours. As I wrote about this case, “in a world of social media… Levy’s Snapchat posts could potentially be read by hundreds of other students – some of whom read them on their phones while attending school. The barrier between on-campus and off-campus language has become much more permeable, and that has a very significant impact on how Tinker should be used. “
BL gave the judges the opportunity to post a single unifying rule that would govern all freedom of expression cases involving public school students’ speech off campus. But the court avoided this opportunity.
The reason for this is that it is quite difficult to make such a unifying rule. While Breyer believes Levy’s school went too far in punishing them, he also admits that there are examples of off-campus speech that should be punished by public schools – including cases of “severe or severe Bullying or harassment aimed at specific people ”. or “threats against teachers or other students”.
While the Court is not attempting to answer the question of when schools could intervene in each case, BL is a firm stand in favor of freedom of expression. At the very least, the Court believes that “courts need to be more skeptical of a school’s efforts to regulate off-campus language” so that every single statement made by a public school student is not subject to the whims of teachers and school administrators.
The Court gives several reasons why the freedom of expression of students should be protected
As Breyer makes clear, Levy has an unusually strong First Amendment claim, and the school’s attempt to discipline her has been on particularly shaky ground. Indeed, Breyer writes that “we cannot find any evidence in the records of any kind of ‘significant disruption’ to school activity or threatened violation of the rights of others that might justify the school’s actions” against Levy. Sometimes students say things that are rude but don’t have a huge impact on the school environment.
Even if the court had ruled that Tinker’s abbreviated version of the First Amendment applied to all student speech, be it on campus or off-campus, it seems likely that Levy would have prevailed.
But the court doesn’t say Tinker is universally applicable to all off-campus speech. On the contrary, BL warns lower courts to be very careful about allowing schools to regulate such speech. And Breyer’s opinion gives three interrelated reasons for this.
The first is that school officials are generally viewed as acting in loco parentis during the school session, which means that when the actual parents of the children do not protect, guide, and take the place of the pupils’ parents, they are can discipline “. But when a student is off campus, that student’s actions “usually fall within the realm of parental rather than academic responsibility.”
The court also fears that too strong a school could try to prevent students from expressing unpopular political or similar views. “When it comes to political or religious statements outside the school or a school program or a school activity,” writes Breyer, “the school will have a heavy burden to justify intervention.”
After all, Breyer advocates a vision of education where schools encourage debate rather than control it. “The school itself has an interest in protecting a student’s unpopular utterance, especially when the utterance is off-campus,” he writes. “America’s public schools are the kindergartens of democracy.” Students learn to participate in a “free exchange” of “informed public opinion”.
However, having set out these principles, the Tribunal fails to attempt to establish a rule for all off-campus speech. Breyer still admits that bullying, threats, or other really outrageous remarks can lead a student to school discipline, even if it happens off campus. And he leaves “for future cases” the task of determining “where, when and how … the location of the speaker outside the campus makes the decisive difference”.
In other words, the BL decision pays homage to the humility of the judiciary. He admits that the Tribunal does not have all the answers and that sometimes it is best to postpone a difficult question than to resolve it in an awkward manner.