Supreme Court considers whether students can be punished for comments outside class

When a ninth grader at a Pennsylvania high school discovered one Saturday that she didn't make the varsity cheerleading team and would remain on the junior varsity squad, she lashed out the way her peers often do — on social media.

What happened next is the subject of a case the Supreme Court will hear Wednesday involving the free speech rights of students nationwide.

Brandi Levy responded to the rejection by taking a photo of herself and a friend at a convenience store with their middle fingers raised. She repeatedly used a vulgar four-letter verb to write, "f--- school f--- softball f--- cheer f--- everything." She posted that message on Snapchat to 250 friends and assumed it would vanish, like any post on that site, within 24 hours.

"I wasn't really thinking about it when I was making it. I was just upset at everything," she said in an interview. "I just wanted to blow off steam."

But another student found out about the message, took a screenshot and showed it to her mother, who happened to be one of the school's two cheerleading coaches. Brandi was suspended from the junior varsity team for her entire sophomore year.

She and her parents sued, and a federal appeals court ruled that because her message was posted off campus, she was beyond the reach of school authorities and for that reason could not be punished.

The Supreme Court's landmark ruling on student expression came in 1969, when it said Ohio students could not be punished for wearing black armbands in school to protest the Vietnam War. In a widely quoted passage, the court said students and teachers alike do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Student expression cannot be regulated, that ruling said, unless it would substantially disrupt the work and discipline of the school.

Brandi and the Mahanoy Area School District disagree on how that precedent applies to off-campus expression like hers in the internet age.

The school says the spread of smartphones, social media and the need for remote learning prompted by the Covid-19 pandemic have blurred the line between on and off campus.

"Wherever student speech originates, schools should be able to treat students alike when their speech is directed at the school" and causes disruption, the district told the Supreme Court it is filings.

The prevalence of social media, the district said, "has made it far easier for students' off-campus messages to instantly reach a wide audience of classmates and dominate the on-campus environment."

The National School Boards Association said in a friend-of-court brief that upholding the appeals court's hard-and-fast rule would be disastrous.

"School administrators must be able to discipline off-campus speech that threatens harm to the school environment — including speech that bullies or harasses students or staff or concerns potential on-campus violence," it said.

The Biden administration is siding with the school district. The Department of Justice said the court's previous cases on school speech dealt with the effects of a message on other students and school activities, not on the time or place where the messages were expressed.

But the American Civil Liberties Union of Pennsylvania, representing the Levys, said young people "have the right to find their voices without being unduly chilled." Off campus, "government may not penalize speech because listeners find it offensive or even disagreeable."

Bullying, harassment and making threats are not protected forms of expression, the ACLU said, so a victory for Brandi would not diminish a school's authority to deal with those kinds of messages.

Louisiana and seven other states agree. They told the court that a ruling in favor of the school district would impose even more of a burden on educators already forced to serve as the never-off-duty police of students.

"This untenable position results in schools either unconstitutionally chilling their students’ speech or facing an uproar, often in the form of a lawsuit, for failing to regulate it," they said.

Brandi's father, Larry Levy, said he hopes the court keeps off-campus speech off-limits, for the sake of free expression. Besides, he said in an interview, "that's how parents learn about what's going on in our children's lives, through social media."

The Supreme Court will issue its ruling by late June.