Samuel Kohl is a junior at the Haverford School. He loves following all things legal and political, and he writes on these issues for his school newspaper, The Index. For his first contribution to High School SCOTUS, Samuel previewed the major student speech case that the Supreme Court will consider tomorrow, Mahanoy Area School District v. B.L.
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Nearly fifty years ago, teenager Mary Beth Tinker wore a black armband to Warren Harding Junior High School in Des Moines, Iowa, in protest of the Vietnam War. Local school administrators moved to silence her, threatening the suspension of anybody else wearing a black armband. The Tinker family filed suit. Before long, the Supreme Court ruled in Tinker’s favor, holding that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” As long as students’ speech doesn’t “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the Court held, then “the prohibition cannot be sustained.”
In 2017, Pennsylvania teenager Brandi Levy took to social media to voice her anger after not making the varsity cheerleading team, posting a “snap” depicting herself and a classmate showing the middle finger with the caption “f*** school f*** softball f*** cheer f*** everything.” She was promptly suspended from the cheerleading team after another student screenshotted the post and showed it to a coach.
Levy’s parents, with help from the ACLU, filed suit against the school district, alleging that the school had violated Levy’s First Amendment rights when it punished her off-campus speech. The district court ruled in Levy’s favor. Her school district appealed to the third circuit court of appeals, which again ruled in her favor. The Supreme Court will now hear arguments in her case on Wednesday.
The main issue in Mahanoy v. B.L. is disputed by both sides. Mahanoy Area School District contends that the “question presented” is
“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”
But Levy sees many problems with this question. She argues that Tinker doesn’t apply to her case, since her speech was neither disruptive to school activities nor threatening to any person. There were no school logos or other identifiers in her picture, and she mentioned nothing about any specific people in her caption. Plus, she feels that Tinker can’t be extended to her situation because the facts of Tinker only dealt with on-campus speech.
Once they decide what the central issue actually is in the case, the justices need to wrestle with the other contentious issues. How should Bethel School District v. Fraser factor into the decision? The school district will allege that this case is a perfect example of schools using their authority to restrict lewd speech. Levy will counter that Fraser only applies to on-campus speech.
But what does “off-campus” really mean? Is an online Zoom class from home “off-campus?” What if, as the school district asks, “a student stands just off school grounds, but shouts at classmates from a megaphone on the sidewalk— is that on campus or off?” This question is even more relevant in a time when the justices themselves are holding Zoom oral arguments.
Mahanoy Area School District foresees many negative consequences if the Supreme Court rules for Levy. First, they fear that it would upend federal and state laws all across the country that allow schools to police actions outside of school. Second, it would seriously hinder a school’s ability to maintain order. Could a student walk one step off campus and be immune from punitive measures? Levy would counter by saying that if the speech in question legitimately hinders the function of the school, it can be restricted.
Mahanoy also points out that schools have other kinds of authority irrespective of school boundaries. For example, in the context of the Fourth Amendment, schools can subject students to random drug tests, even if the tests are targeting off-campus drug use.
I think that the Court should find in favor of the respondent, Brandi Levy. The Court has already ruled that online speech is the operative equivalent of spoken speech under the First Amendment (see Packingham v. North Carolina and Reno v. American Civil Liberties Union). If Levy said these profanities out loud to her friends instead of putting it online, it seems frankly absurd that the school could restrict it, especially taking into account that nothing specific was said about any person or group of persons. Nevertheless, whichever way the Court rules is bound to have wide-ranging effects on how discipline is practiced in public schools across America, particularly in a time when the issue of restricting online speech is hotly debated.
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