Can schools discipline for off-campus student speech? Court to take up First Amendment case.

WASHINGTON – It may not be the loftiest dispute the Supreme Court has ever heard, but the suit from a high school cheerleader who lashed out after being cut from the team may be one of the most relatable for anyone who's ever had a bad day. 

And the case of Brandi Levy, who at 14 years old let off some steam in a profanity-laden social media post in 2017 aimed at her school, her team and "everything," may wind up as one of the court's most important decisions on student speech in a generation.

The nation's highest court, which will hear oral arguments in the case Wednesday, could decide whether schools may punish students for the things they say off-campus, including on social media sites that have become ubiquitous for American teens. 

Civil liberties groups fear the court will turn schools into speech police, limiting students' First Amendment rights. School districts counter that they must be free to discipline off-campus speech that leaches into the classroom and the locker room, including to protect students from bullying that can be amplified online and miles from the schoolyard. 

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The story starts when Levy, a rising sophomore at the Mahanoy Area School District in Pennsylvania, failed to make the varsity cheer squad. She took to Snapchat, exhorting her followers on the social media site to "F–––– school f–––– softball f–––– cheer f–––– everything." In case the message wasn't clear, she included a picture of her and a friend – both of whom were off-campus at the time – raising their middle fingers.

Snapchat messages disappear on their own – the posts are meant to be temporary – but another student captured Levy's message with a screen grab and showed it to the team's coaches. Levy was booted from the junior varsity squad and, after appealing to school authorities, her parents sued the district in federal court. 

"If I had to do it over again, I probably wouldn't have posted that," Levy, now a college freshman planning to major in accounting, acknowledged in an interview. "I feel like I just wouldn't have posted it but I still would have had those same feelings."

Student speech was at the heart of Tinker v. Des Moines, a landmark 1969 Supreme Court decision that involved a group of students who wanted to wear black armbands to protest the war in Vietnam. The court affirmed that students don't shed their freedoms "at the schoolhouse gate," but also ruled that schools may regulate speech in cases where it "materially disrupts" the operation of the school.

The question for the court is whether that same standard applies to off-campus speech. Attorneys for the American Civil Liberties Union, who are representing Levy in the case, say that applying that standard beyond the school would give principals power to punish students even in cases when they are chatting with their friends on the weekend.  

"The fear is that by extending Tinker, it will allow schools to regulate what you could call socially useful speech," said Witold "Vic" Walczak, legal director of the ACLU of Pennsylvania. "Anything that is critical, potentially offensive, politically incorrect, challenges the status quo, is potentially disruptive."

The Mahanoy school district declined to comment, but several groups representing teachers and school administrators pointed to "real world" consequences of not allowing them to discipline students for off-campus speech. Several noted that most school children took part in class remotely at some point during the coronavirus pandemic. 

Another problem the schools raise: bullying, which happens at school, but also online. 

"The concern is, how do we keep young people safe, young people that are in our charge, when the actions that we're concerned with have to do with student speech that can sadly sometimes involve bullying and harassment, with very tragic consequences?" said Francisco Negrón, chief legal officer for the National School Boards Association.

"What this case is really about is how virtual reality for young people is no longer virtual in nature. It simply is reality."

A federal district court ruled for Levy in 2019, finding that – even if the Tinker standard applied off campus – the speech she used wasn't disruptive enough to trigger disciplinary action. The Philadelphia-based U.S. Court of Appeals for the 3rd Circuit took the decision a step further, finding that Tinker does not apply to off-campus speech.  

The unanimous opinion found Levy's message "crude, rude, and juvenile, just as we might expect of an adolescent." But, the court said, "the primary responsibility for teaching civility rests with parents and other members of the community." 

"Otherwise, we give school administrators the power to quash student expression deemed crude or offensive – which far too easily metastasizes into the power to censor valuable speech and legitimate criticism," the court wrote. 

The Supreme Court is expected to decide the case in June.