FILE - In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. Before the Supreme Court this session is a case involving whether public schools can discipline students over something they say off-campus. (Erin Schaff/The New York Times via AP, Pool, File)
A case involving a cheerleader upset over failing to make the varsity squad could change the way we think about free speech for American public school students.
Brandi Levy, then a 14-year-old JV cheerleader in Pennsylvania, took out her anger over the varsity snub with a Snapchat post featuring her raised middle finger and other profanities sent to friends. When her coach caught wind of the Snap, she lost her spot on the JV squad.
The last major Supreme Court case to address free speech and students came in 1969’s Tinker v. Des Moines. Students sued after the Des Moines Independent Community School District sent students home for wearing arm bands with a peace sign on them during the Vietnam War. The Supreme Court ultimately ruled both students and teachers have a right to free speech at school.
Tinker does not mean there are no limits on free speech in public schools, however. Students may not disrupt the school environment, though many people may disagree about what disruption means. They also cannot break the rules to make a point, so long as the school’s rules are applied equally.
US Supreme Court justices will decide, likely sometime this month, whether school rules apply to off-campus speech.
The American Civil Liberties Union (ACLU), which represented Mary Beth Tinker in 1969, represents the now-17-year-old Brandi Levy in her case.
Ms. Levy has not been expelled or even suspended from her school.
In oral arguments, Justice Stephen Breyer got to the heart of the matter quickly, wondering whether online swearing, off-campus, should even qualify for school punishment.
“If swearing off-campus did [qualify], my goodness, every school in the country would be doing nothing but punishing,” he said, according to NPR.
Greg Skordas, a defense attorney, former prosecutor and legal analyst, joined Debbie Dujanovic to discuss what could become a landmark Supreme Court decision addressing free speech and students for the first time in decades.
“We’re talking about a public school,” Skordas said. “That’s important to me because the public school is the government. So the First Amendment deals with the government, restricting the person’s ability to have free speech.”
Most issues concerning free speech and students in the last 15 months involve off-campus behavior. That means student speech includes things like a cheerleader rant on social media or mobile phone, Skordas noted.
“If this is a private school, we’d be having a different conversation,” Skordas said. “If the school had even had some regulations in effect for their cheer squad, we might be having a different conversation. But she’s just mad. I mean, she’s just really mad. She posts this thing on Snapchat thinking it’s going to disappear in 24 hours, but one of her friends of course screenshots it, so there it is for time and all eternity.”
“Now she’s kicked off the team because she’s posted this profanity laced video to Snapchat, to something like 250 followers, so it’s not like she’s posting it to millions and millions, but 250 didn’t get very far until it gets sent to the school,” Debbie said.
“And importantly, she wasn’t posting something to incite violence at the school, to bully students or another student at the school, to promote drug abuse or something like that,” Skordas said “She’s just angry. She’s venting and venting against the school and cheer and softball and those kinds of things. It’s more of an angry thing. And I think the school’s position was well, it’s not conducive to what we want to do with the school. It’s not the kind of thing that you should be promoting as a cheer member.”
Debbie said she approaches the case from her point of view as a mom.
“I do not want the school to suspend my child, kick my kid off of any team for something that they say on social media . . . I think the school district was way out of line for this,” she said.
“This is way out of bounds. [It] has nothing at all to do with being on campus, in a classroom, posting a Snapchat video about how much you hate the school. This is totally off-campus on a Saturday at a teen hangout. I think the school district’s way out of line,” Debbie said.
“Well, I don’t necessarily agree with you,” Skordas said. “I think there are some limits on this, but I would ask you this, not to put you too much on the spot, but does it matter what the content of her speech was? What if her words had been something different?”
“I’m going to talk specifically to the case,” Debbie said. “This was a profanity-laced Snapchat. She was angry at the cheer squad. It wasn’t a call for violence. She wasn’t bullying anybody — she just hated her school in the moment, she was 14 years old, she can say whatever she wants to on social media. And it’s my decision as a parent to put her in timeout or to ground her.”
“She was taken off the cheer squad. I mean, maybe there’s worse things,” Skordas said. “The school’s reaction wasn’t over the top. I mean they didn’t say, ‘You’re out of here.'”
“But that cheer squad, Greg, may be her connection to her friends,” Debbie replied. “That age certainly can be a child’s connection to their identity, to their future. If you’ve had a teenager, you know how these things go.
“If they’re kicked off of a team that could create another host of issues. I think in this case the school was clearly wrong. If I were sitting on the Supreme Court, I would absolutely rule in the student’s favor and tell the school district to pound sand,” she said.
“I think most legal experts are going to agree with you,” Skordas said.
The Supreme Court typically releases decisions on Mondays and Thursdays in June, as its annual term wraps up. A decision in Mahanoy Area School District v. B.L. could come as soon as June 10.
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