After having a really bad day in 2017, Fourteen-year-old Brandi Levy posted a profanity-laced Snapchat post which has, improbably, ended up before the the U.S. Supreme Court in the most significant case on student speech in more than 50 years.
At issue is whether public schools can discipline students over something they say off-campus. The topic is especially meaningful in a time of remote learning because of the coronavirus pandemic and a rising awareness of the pernicious effects of online bullying.
Arguments are on Wednesday, via telephone because of the pandemic, before a court on which several justices have school-age children or recently did.
The case has its roots in the Vietnam-era case of a high school in Des Moines, Iowa, that suspended students who wore armbands to protest the war. In a landmark ruling, the Supreme Court sided with the students, declaring students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Ever since, courts have wrestled with the contours of the decision in Tinker v. Des Moines in 1969.
Levy’s case has none of the lofty motives of Tinker and more than its share of teenage angst.
Levy and a friend were at a convenience store in her hometown of Mahonoy City, Pennsylvania, when she took to social media to express her frustration at being kept on her high school’s junior varsity cheerleading squad for another year.
“F——— school f——— softball f——— cheer f——— everything,” Levy wrote, in a post that also contained a photo in which she and a classmate raised their middle fingers.
The post was brought to the attention of the team’s coaches, who suspended Levy from the cheerleading team for a year.
Levy, now 18, is finishing her freshman year in college. “I was a 14-year-old kid. I was upset, I was angry. Everyone, every 14-year-old kid speaks like that at one point,” she said in an interview with The Associated Press.
Levy’s parents filed a federal lawsuit, claiming the suspension violated their daughter’s constitutional speech rights.
Lower courts agreed and restored her to the cheerleading team. The 3rd U.S. Circuit Court of Appeals in Philadelphia held that “Tinker does not apply to off-campus speech.” The court said it was leaving for another day “the First Amendment implications of off-campus student speech that threatens violence or harasses others.”
The Mahanoy Area School District declined to comment on the case, its lawyer, Lisa Blatt, said.
The school’s approach would allow educators to police what students say round the clock, said Witold “Vic” Walczak of the American Civil Liberties Union, which is representing Levy.
“The fact that 95 percent of kids spend much of their lives online is not a reason to censor it. It’s a reason to provide even more protection,” Walczak said. “The solution is not to change the constitutional standard, but to allow schools to develop rules that are targeted at these problems of threats and bullying so that you’re not jeopardizing political, religious speech and just kids like Brandi who are having a bad day and are spouting off but are not harassing, threatening anybody. I mean, this is not speech that hurt anybody. This is not speech that a school ever should have been able to regulate. And if they had any issue with it, they could have talked to Brandi and said, hey, we saw this. We’re upset. What’s going on?”
An unusual alliance of conservative and liberal interest groups has formed behind Levy, all pointing to the dangers of expanding school regulation of students speech.
Mary Beth and John Tinker, the siblings at the center of the 1969 case, also are on Levy’s side. Their protest, updated for the digital age, would have included a social media component, perhaps a black armband digitally imposed on their school’s logo, they wrote in a high-court brief.
Walczak, the ACLU lawyer, acknowledged that the form of “speech” at play is the most important in the world because it is not political or religious.
But Levy’s outburst has made her a potential successor to the Tinkers and their antiwar protest from the 1960s.
“I’m just trying to prove a point that young students and adults like me shouldn’t be punished for them expressing their own feelings and letting others know how they feel,” Levy said.
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