Supreme Court hears off-campus free speech case, directly impacts LGBTQ youth

Brody Levesque

Miscellaneous

WASHINGTON – In oral arguments heard by the U.S. Supreme Court on Wednesday in a Pennsylvania school district free speech case, the Justices in questioning attorneys seemed to hold a viewpoint expressing reluctance to give schools wide latitude to punish students for things they say or post on social media when they’re off campus.

The case, Mahanoy Area School District v. B.L. centers around single social media post in the form of a profanity filled rant on SnapChat by a teenager who was not advanced to a varsity cheerleading spot on her small, rural public high school’s cheerleading squad in Schuylkill County, Pennsylvania.

On Snapchat, she posted 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.”

According to NBC News senior justice correspondent Pete Williams, the girl, identified as Brandi Levy said, “I wasn’t really thinking about it when I was making it. I was just upset at everything.”

However, 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.

Justices seemed to express hesitation whether an outburst such as Levy’s rose to the occasion for a school to punish a student, as could be expected in the cases of threats to do harm or bullying.

“She blew off steam like millions of kids have when they’re disappointed about being cut from the high school team, or not being in the starting lineup, or not making all-league,” said conservative Justice Brett Kavanaugh. “It didn’t seem to me like the punishment was tailored to the offense.”

“I’m told by my clerks that how much you swear is a badge of honor,” said Sonia Sotomayor, one of the court’s liberal justices.

Justice Stephen Breyer another liberal said that if using swear words off campus was considered disruptive, “My goodness, every school in the country would be doing nothing but punishing.”

In the landmark 1969 ruling, Tinker v. Des Moines Independent Community School District, the Supreme Court’s majority ruled in a 7-2 decision, that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court took the position that school officials could not prohibit only on the suspicion that the speech might disrupt the learning environment.

Levy and the Mahanoy Area School District disagreed on how that precedent applies to off-campus expression like hers in the internet age, and the court struggled Wednesday where to draw the line between expression that is disruptive on the one hand or merely offensive on the other, Williams reported.

“That’s a very nebulous line,” said conservative Justice Samuel Alito. “I’m concerned about the effect on freedom of speech.

This case also has implications for the LGBTQ community’s youth Lambda Legal told the Blade in an emailed response to a question about the case’s impact.

“The Mahanoy case is significant because the precedent at issue — Tinker and the students’ rights cases based on it — has played a significant role in advancing the rights of LGBTQ students. Preserving protections for LGBTQ coming-out speech and gender expression (e.g., promposals, wearing a Pride pin or t-shirt, or wearing a dress to prom) as well as the right to refrain from speech (e.g., National Day of Silence), are important to ensuring protections for LGBTQ students regardless of Title IX interpretation or passage of the Equality Act,” said Kara Ingelhart, Staff Attorney of Lambda Legal.

‘And although Lambda agrees that the school in this particular case lacked authority to discipline the plaintiff student, nonetheless (and as the Court grappled with in argument today) there remain instances when schools must take action to curb off-campus or after-hours student speech in order to protect the rights of other students to be secure and free from bullying and harassment. Under Tinker, schools retain the ability to regulate off-campus and/or after-hours student speech that harms others, such as speech constituting bullying and harassment based on sex, race, LGBTQ status, and/or disability. Indeed, schools have an obligation to do so in order to protect the rights of marginalized students and ensure that they have access to an education,” Ingelhart pointed out.

“The Third Circuit decision, while noting that the context of harassment was not before it, contained broad language that could be misconstrued to prevent schools from addressing harassment that occurs off campus or during hours when school is not in session. We filed an amicus brief in support of the student noting this important concern about a school’s obligation to protect students from harassment particularly girls of color, in addition to disabled, and/or LGBTQ students and also highlighting that students from these historically marginalized groups also disproportionately face discipline for speech conduct.

To prepare the brief, we partnered with three leading organizations that advocate with us to protect students’ rights, the National Women’s Law Center, the National Lawyers Committee for Civil Rights, and the national law firm Ropes & Grey.” 

The Supreme Court will issue its ruling by late June