Saturday, May 1, 2021

Student Speech Case Falling Flat at Court?

              Brandi Levy, the frustrated high school cheerleader from Pennsylvania, got her free-speech case before the U.S. Supreme Court last week [April 28], but she seems unlikely to emerge as a poster child for the First Amendment in the way that Mary Beth Tinker is celebrated today for vindicating student speech rights with her anti-war protest in the 1960s.

Tinker was one of three Iowa teenagers who battled the Des Moines school district up to the Supreme Court in 1969 after they were suspended for wearing black armbands to school to protest U.S. policies in the Vietnam War.

Brandi Levy’s case against the Mahanoy Area School District evidently lacks the constitutional weight of Tinker’s case. She was disciplined not for an important political message, but for an expletive-filled rant that she posted on social media after she was passed over for promotion to her high school’s varsity cheerleading squad.

In Tinker’s case, the Supreme Court famously declared that students do not “shed their constitutional rights to freedom of speech or freedom of expression at the schoolhouse gate.” But the majority in the 7-2 decision, Tinker v. Des Moines Independent Community School District (1969), nevertheless concluded that schools may discipline students for speech that interferes with the rights of other students or “would materially and substantially disrupt the work and discipline of the school.”

With those provisos, school authorities around the country have come to live comfortably with Tinker as giving them some leeway, for example, to discipline students for wearing Confederate flag T-shirts that amount to bullying or harassment directed against Black students or anti-gay T-shirts that stigmatize LGBT schoolmates.

Brandi Levy’s case drew the American Civil Liberties Union’s interest as a test of whether school authorities may discipline a student for speech far outside the schoolhouse gate. Representing Brandi, ACLU lawyers won a broad victory from the federal appeals court in Philadelphia that schools have no authority whatsoever to punish students for off-campus speech, even if – as in Brandi’s case – the speech related to school programs and reverberated within the school’s walls.

Representing Brandi, the ACLU’s national legal director David Cole told the justices that all parties to the case agree that schools can punish bullying or harassment.

Supreme Court justices struggled  indecisively with the case during Wednesday’s oral arguments  as lawyers for the Mahanoy school board and the U.S. government argued against the ACLU’s position to exempt off-campus speech from school discipline altogether.

Brandi’s discipline consisted of a one-year suspension from the junior varsity cheerleading team. From the bench, Justice Brett Kavanaugh, a former basketball coach, asked whether the punishment was more severe than warranted even though that issue was not part of what the Court agreed to consider.

More generally, justices across the ideological spectrum seemed far from certain about how to approach the case. From the bench, Breyer remarked that he had no interest in using the case to write “a treatise” about the First Amendment. Alito worried about how to write a “clear rule” for off-campus speech and even went so far as to suggest that the Court might dismiss the school board’s appeal altogether without a ruling.

For this First Amendment hawk, Brandi’s case seems not only trivial, but weak. The geographical limit on school discipline is unrealistic in an age when, as one of the justices remarked, the Internet is “everywhere.” Cole went too far, in my view, in contending that allowing discipline for off-campus speech would force students to carry the school on their backs even in private conversations with schoolmates or with family inside their homes.

 The cheerleading coach surely had a good point in suggesting that given Brandi’s angry post about the cheerleading team, she ought not be the girl at the bottom of the pyramid. By week’s end, Court watchers were predicting that the Court’s eventual decision, due by the end of June, would be narrow and inconclusive in many respects.           

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