The story of Mahanoy Area School District v. B.L. began when Brandi Levy, a high-school freshman in eastern Pennsylvania, was passed over for the varsity cheerleading team. Levy took to Snapchat to express frustration, posting a photo of herself and a friend giving the middle finger, with the caption “Fuck school fuck softball fuck cheer fuck everything.” She added, in another post, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s doesn’t matter to anyone else?🙃 ” Levy was apparently referring to the fact that an incoming freshman was put on the varsity team. According to a coach, some students who saw the posts were “visibly upset” and found them “inappropriate.” Levy was suspended from cheerleading for a year for violating the team’s rules, which require that students “have respect” for the school, coaches, and teammates, avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” The coaches as well as the school district also maintained that she violated a school rule that athletes must conduct themselves during the season “in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Levy, represented by the American Civil Liberties Union, filed a lawsuit, alleging that her suspension from the team violated the First Amendment. Last week, the Supreme Court heard oral arguments in the case, which the Justices understood not only to raise the question of whether public schools may discipline students for speech outside of the school-supervised setting but also to implicate public schools’ power to punish students for discrimination, harassment, and bullying.
The precedent for the current limits of speech in schools was set in 1969, after a group of students and adults in Des Moines decided to wear black armbands as a silent protest against the Vietnam War. Public-school administrators learned of the plan and banned the wearing of the armbands at school. The handful of students who defied the ban were suspended. The Supreme Court, in Tinker v. Des Moines Independent School District, held that disciplining the students violated the First Amendment. After all, the Court reasoned, the students’ expression of opinion did not cause “disruption” to the school—that is, it didn’t “substantially interfere with the work of the school or impinge upon the rights of other students.” During the Cold War, the Court saw the school’s disapproval and punishment of the dissenting students through that era’s lens, stating that “state-operated schools may not be enclaves of totalitarianism.” In 2007, in Morse v. Frederick, the Court, with four liberal-leaning Justices dissenting, found that an Alaska public school did not violate the First Amendment in suspending a student who displayed a “pro-drug” banner stating “BONG HiTS 4 JESUS,” at a school-supervised event. Only Justice Clarence Thomas took the view that “the First Amendment . . . does not protect student speech in public schools.”
Levy’s snaps were posted on a weekend and off-campus, while at a convenience store. It’s easy to opine that the coaches overreacted and should have been more tolerant of a student blowing off steam about school-related disappointments, the normal rough and tumble of being a teen-ager. But schools and the Court also have to take into account that, these days, students tend to do that online, whether they are at school or at home. The past year of remote school has further unmoored students’ communicative and interpersonal lives from a physical campus. If schools may discipline students for speech that is “disruptive” only when it happens to occur on campus or in a school-sanctioned setting, this may weaken their ability to address discrimination, harassment, and bullying….