Should a profane Snapchat rant by a frustrated central Pennsylvania high school cheerleader become the catalyst for expanding the law to allow school districts to punish students for controversial comments they post on social media while off school grounds?
That might be an iffy proposition, judging from the give and take during the U.S. Supreme Court’s two-hour hearing Wednesday on the case of Mahoney Area School District versus Brandi Levy.
Several justices seemed sympathetic to Levy, who was suspended from the cheerleading squad over her Snapchat post. There also seemed to be some skepticism regarding expanding school authority over off-campus student speech, although the justices peppered attorneys for both sides with questions pretty evenly.
District officials, who have lost this battle repeatedly in the lower courts, are urging the nation’s highest court to expand on 51-year-old case law, the so-called Tinker ruling, that permits school officials to discipline students for “disruptive” speech uttered on campus that significantly disrupts educational operations.
They want the Tinker ruling to be stretched to allow school officials to punish speech they deem disruptive to school operations that students post on Snapchat, Facebook and other social media platforms while the students are not on school property.
The dispute hinges on the year-long suspension from the cheerleading team that Levy received as punishment for a fleeting expletive-laced Snapchat post she published in 2017 while out of school on a weekend. She was 14 years old at the time and had failed to make the varsity cheerleading squad for her Schuylkill County high school.
Her post stated, “”(Expletive) school, (expletive) softball, (expletive) cheer, (expletive) everything.”
Lisa S. Blatt, the attorney for the school district, said extending Tinker to cover out-of-school student speech is necessary because “off-campus speech, particularly on social media, can be disruptive.”
Such an extension should only allow disciplinary action for such speech that causes a “material and substantial disruption” of school operations and or involves harassment such as bullying, Blatt said. She said Tinker already bars districts from punishing students for protected political and religious speech and that safeguard would remain in place.
Several justices asked why Levy’s Snapchat prompted such a reaction from the district.
“She used unattractive swear words off campus. Did that cause a material and substantial disruption? I don’t see much evidence it did,” Justice Stephen G. Breyer said. “If swearing off campus did, my goodness, schools in this country would do nothing but punishing.”
Blatt replied that Levy’s cheerleading coach “reasonably forecasted that someone who berates with a profane gesture and words is not somebody you’d want at the bottom of the pyramid.”
“She (was) a cheerleader and it’s an extracurricular program where she consented to an extra degree of regulation because she’s a school ambassador,” Blatt added.
Justice Brett M. Kavanaugh questioned the reasonableness of Levy’s punishment.
“As a judge and maybe a coach and a parent, too, it seems like maybe (her suspension was) a bit of an over-reaction by the coach,” Kavanaugh said. “She’s competitive. She cares. She blew off steam like millions of kids have done when they’re disappointed about being cut from their high school team.”
“So, maybe what bothers me when I read all this is that it didn’t seem the punishment was tailored to the offense,” he said.
Blatt argued that restricting the bounds of Tinker to school property simply doesn’t take the reality of the internet age into account.
“The internet is ubiquitous. It doesn’t have a geography,” she said. “Students shouldn’t be able to place their speech off limits simply by stepping off campus.”
Attorney David Cole of the American Civil Liberties Union, who represents Levy, countered that school districts shouldn’t be given “24/7” authority to punish student speech.
Such an expansion “would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go,” Cole said. “It would also directly interfere with parents’ fundamental rights to raise their children.”
“Levy “was punished for merely expressing frustration with a four-letter word to her friends outside of school on a weekend,” he added. “Her message may seem trivial, but for young people the ability to voice their emotions without fear of school censorship may be the most important freedom of all.”
Justice Elena Kagan focused on how the internet has blurred the on-campus, off-campus boundary.
“It might be that student speech that occurs outside of school is…going to cause fundamental problems, disruption of the school’s learning environment,” she said. “I guess the question is why we shouldn’t acknowledge that and allow a school to deal with it?”
Cole argued that adoption of the school district’s position “would teach students they can never speak candidly with their friends without worrying that a school official will deem their views potentially disruptive and suspend them or otherwise punish them. That is the wrong lesson to teach.”
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