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June 25, 2021

SCOTUS Gives Pennsylvania Student Plenty of News to Cheer About in Free Speech Decision

On June 23, 2021, the Supreme Court of the United States issued an 8–1 decision in Mahanoy Area School District v. B.L., declaring that Pennsylvania student and former cheerleader Brandi Levy’s First Amendment rights were violated after she shared explicit language and thoughts about her school, Mahoney Area High School, on social media. In 2017, then 14-year-old Levy was not promoted from junior varsity to varsity cheerleading at her school, prompting her to post a photo of herself and a friend on Snapchat giving an explicit gesture and using vulgar language in describing her feelings about the school. School officials found a screenshot of the message (which was later deleted), and then suspended Levy from the cheerleading team for a year, alleging she signed and was mandated to follow a school district policy prohibiting that kind of speech on social media. She and her parents then went straight to court, marking just the latest in a slew of cases involving students and their ongoing battle for greater free speech rights.

Levy and her parents maintained that she should not have been punished for comments she made while off-campus, and the initial federal appeals court sided in her favor, deciding that school officials should not be able to punish students for speech that takes place away from or unconnected to the campus. The United States District Court for the Middle District of Pennsylvania relied on the Tinker v. Des Moines Independent Community School Dist. case,1 which states that schools have a special interest in regulating on-campus student speech that might materially disrupt classwork or invade others’ rights. The district court ruled that under Tinker, Levy’s comments were not connected to the school and therefore she should not be disciplined as a result. The case was appealed to the Third Circuit, which affirmed the lower court, but held that Tinker could not be analyzed to apply to off-campus speech. The Third Circuit’s decision created a split for the Supreme Court to address, resulting in its June 23 decision.  

The Supreme Court agreed with the lower courts, yet also maintained that schools are allowed to prohibit or punish students engaging in certain sectors of speech, especially if it falls into categories of harassing, bullying, or otherwise disruptive commentary. The court also reasoned that even though public schools have a special interest in regulating some off-campus speech, those interests were not sufficient enough to override Levy’s freedom of speech. The court did not specify as to when and how schools are allowed to regulate off-campus speech, leaving that issue open to future litigation and other courts to decide.

There is no doubt that there will certainly be more cases regarding this issue to come, as free speech cases in relation to students and public schools has become more common than ever, particularly with the rise of social media in the past decade. Cases like this date back to Tinker, which involved students wearing black arm bands to school to protest America’s involvement in the Vietnam War, with the court ruling that the students’ conduct did not significantly disrupt classroom or school activities. Tinker was one of the first major Supreme Court cases that set the precedent for affording First Amendment rights to public schools, yet the court began to scale back from its more liberal 1960s stance as the years wore on. In 1986, in Bethel School District v. Fraser,2 the court ruled that high school student Matthew Fraser’s freedom of speech rights under the First Amendment were not violated after he made a speech including sexual innuendo at a school assembly. Then, in 1988, in Hazelwood School District v. Kuhlmeier,3 the court held that the school principal’s removal of a student newspaper article regarding divorce and teen pregnancy did not violate the First Amendment rights of the student journalists, stating that school administrators were allowed to censor school-sponsored expression, such as curriculum-based student newspapers, as long as those restrictions related to pedagogical concerns.

Some now classify the Levy case as a turning point for students’ free speech rights, as it is one of the first major cases to afford students greater ability to speak their mind off-campus. However, others have pointed out that the court still maintained that school districts can regulate some off-campus speech in certain situations.

Either way, it is certain the legal community will see many more cases related to free speech in schools and the different ways students express their opinions in this evolving social media-centered world.

If you have any questions regarding the content of this alert, please contact Elizabeth Vulaj, associate, at evulaj@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense Practice Area.

1 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

2 Bethel School District v. Fraser, 478 U.S. 675 (1986).

3 Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).

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