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Supreme Court seems wary of bold pronouncements in student speech case

Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pa., and a key figure in a major U.S. case about free speech.
Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pa., and a key figure in a major U.S. case about free speech. (Danna Singer/ACLU/Reuters)
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Supreme Court justices seemed torn Wednesday about giving school officials authority over what students say when not on campus or cutting administrators entirely out of the equation.

After nearly two hours of argument conducted by teleconference, it seemed a majority might find a lower court went too far in deeming off-campus activities by students completely off-limits to school officials.

But, especially when the Internet amplifies student “speech” far beyond the schoolhouse gate, the justices professed to having a hard time drawing clear lines between when discipline was appropriate and when it endangers the free speech rights of 50 million public school students.

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There was also a hint that the case of a 14-year-old high school cheerleader kicked off her squad for a profane Snapchat missive sent to friends might not be the best vehicle for sweeping free-speech pronouncements

“As far as I can see, I can’t write a treatise on the First Amendment in this case,” said Justice Stephen G. Breyer, who added later, “I would be frightened to death to write a standard.”

The justices didn’t make it easier for themselves or lawyers representing former student Brandi Levy, the school board that upheld her suspension, and the federal government, which has sided with school administrators.

The justices’ free-speech hypotheticals included inflammatory praise — or disdain — for Black Lives Matter, antifa or the Proud Boys; bringing Confederate flags to school; criticizing teachers; undermining the authority of coaches; and punishing students who use male pronouns for transgender girls.

At one point, Justice Elena Kagan seemed critical of the government’s wide definition of the kind of “school speech” by students that would allow authorities to step in: “Everything that mentions a school at all is school speech, right?”

But she also pressed American Civil Liberties Union lawyer David D. Cole about whether school administrators are helpless when they see toxic behavior on the Web, such as boys creating a website to rank girls on their appearance and sexual activity.

“We wouldn’t put people in jail for that, you know, outside of a school context, but it seems as though a school should be able to deal with it. Why not?” she asked.

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As the questions indicated, the task for the court was to apply its landmark 1969 decision in Tinker v. Des Moines Independent Community School District to a digital era. That double-edged decision famously held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But it also gave schools broader authority over students than the state generally may wield when restricting speech. It said authorities can discipline students for on-campus speech that causes or is likely to cause “material and substantial” disruption of school functions.

“Modern technology” blurs the lines between on-campus and off, said Chief Justice John G. Roberts Jr. When a student sends a text from the parking lot but it’s read in the school cafeteria, “is that off campus or on campus?”

The case the justices chose makes such decisions problematic.

Levy — now an 18-year-old college student — was a frustrated ninth-grader when she lamented being passed over for the varsity cheerleading squad. On a spring Saturday in her freshman year, she posted on Snapchat a photo of herself and a friend with upraised middle fingers and this rant:

“F--- school, f--- softball, f--- cheer, f--- everything.” It was sent to about 250 friends, including fellow cheerleaders at Pennsylvania’s Mahanoy Area High School.

It was supposed to disappear in 24 hours, but her cheerleading coaches were alerted to it, and Levy was suspended from cheerleading for a year — but not from school.

After appealing to the principal, superintendent and school board, she and her parents filed suit with the help of the ACLU. A district judge ruled in her favor and reinstated her to cheerleading.

A panel of the U.S. Court of Appeals for the 3rd Circuit went further. It disagreed with other courts that have considered the issue, and said Tinker’s grant of authority to school administrators does not extend to off-
campus speech.

Washington lawyer Lisa S. Blatt, representing the school district, said that had to be wrong. “Off-campus speech, particularly on social media, can be disruptive,” she said. “The Internet’s ubiquity, instantaneous and mass dissemination, and potential permanence, make the speaker’s location irrelevant.”

She also defended the coaches’ decision regarding Levy’s suspension. The girl’s actions, Blatt said, showed she’s “not somebody you’d want at the bottom of the pyramid.”

Justice Brett M. Kavanaugh said that as “a judge and maybe as a coach and a parent, too,” he wasn’t so sure about that and thought the coach overreacted.

Referring to Levy, he said: “She’s competitive, she cares, she blew off steam like millions of other kids have when they’re disappointed.” He suggested the court could merely say Tinker does apply to off-campus speech and send the case back.

Justice Samuel A. Alito Jr. seemed to think that would be an unsatisfactory resolution.

And he was concerned about the argument from Justice Department lawyer Malcolm L. Stewart that school authorities had a role to play when a student’s speech was directed at the school.

“What you’ve just proposed is a very nebulous line,” Alito said. “And I’m quite concerned about the effect of this on freedom of speech. I think we need clear lines.”

Under questioning from Justice Clarence Thomas, Stewart said an important facet of the case is that Levy had agreed to abide by certain rules to be part of an extracurricular team. It would have been problematic to suspend Levy from school for her outburst, Stewart said, but it was understandable to suspend her from the team.

Cole reminded the justices that Tinker was an exception to the First Amendment for school officials, not an invitation for “24/7” monitoring. It dissolves when the schools are no longer supervising students and parents should be in control, he said.

“So schools can prohibit pro-drug messages at school, but not elsewhere,” Cole said. “They can ban profanity at school, but not at home. So, too, they can punish disruptive speech at school, but not at the convenience store on the weekend.”

But Cole also made a list of concessions, including agreeing that there could be special rules for members of teams or other extracurricular activities. He noted that the appeals court found Levy had not violated the rules, and that the school district had not brought that issue to the Supreme Court.

Additionally, “everyone agrees off-campus bullying, harassment, and threats properly defined can be regulated,” Cole said. “The difference between the other side’s test and ours is this: Ours would protect political speech, whistleblowing, and venting frustration outside school even if a principal predicts it will lead to disruption. Theirs would not.”

Blatt portrayed the school board’s position as one that merely maintained the status quo, while she said the ACLU’s test would lead to “chaos.”

The case is Mahanoy Area School District v. B.L.