On April 28, the Supreme Court of the United States heard oral arguments in the case of Mahanoy Area School District v. B.L., a case that could fundamentally change the meaning of a minor’s First Amendment rights. With a decision soon to be rendered, this case is one set to alter free speech among both school districts and students.
Brandi Levy, a 14-year-old high school freshman and junior varsity cheerleader in 2017, did not make her school’s varsity cheering team. Posting a picture with her friend with her middle fingers raised, she captioned it: “F—school, f—softball, f—cheer, f—everything,” which resulted in her suspension from the cheering team. Brandi Levy posted this on her private account, off of school grounds and on the weekend—she did not use school resources or make any threats.
Through her parents, Brandi Levy filed a complaint and a Motion for Temporary Restraining Order (TRO) in the U.S. District Court for the Middle District of Pennsylvania. A TRO is a short-term, pretrial temporary injunction that is granted if immediate, irreparable injury is likely to occur. When an injunction is issued, it stops that party from going forward with an action that might infringe upon another’s rights. In this case, Brandi Levy alleged that the school punished her for speech originating outside of school, an action not against the law itself in Tinker v. Des Moines Independent Community School District.
In Tinker, when a group of students decided to wear armbands in school in support of the truce in the Vietnam War and were thus sent home, the court ruled in the student’s favor. The reasoning in Tinker was that conduct, in order to be punishable, must “materially and substantially interfere” with the operation of the school. As a result of the ruling in Tinker, the court found that Levy’s social media statement did not meet this criterion. As a result, the court granted her TRO based on her First Amendment claim’s likelihood of succeeding. Summary judgment was also granted.
In addition to examining Tinker, the court also referred to Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), a case in which a student was suspended for vulgar language on school property. Up until now, a school is allowed to punish students for actions under the First Amendment on school grounds, according to Bethel. What sets the current case apart is that the actions by Brandi Levy happened in a different circumstance—off school grounds.
Unsatisfied with the lower court’s decision, the school district appealed to the Third Circuit. The Third Circuit affirmed the decision, citing off campus speech was not covered under the two previous cases, and just because the speech involves the school does not further mean that it is on campus.
Then, in something that happens for fewer than 3% of those who apply, the school district appealed to the Supreme Court and was granted a writ for certiorari. In oral arguments, the school district argued that “social media and new technology has aided a student’s speech [and] commands the school’s attention.” Thanks to the lower court’s ruling, the school district argued, schools have no way to discipline students for off campus speech.
The parties, now awaiting action from the Supreme Court nearly four years after the initial incident, have been asked a simple question: Does Tinker apply to off campus student speech? This one simple, yet commanding question, has the possibility to offer increased protection to student’s First Amendment rights or broaden the powers that school districts have over students off campus.
If the court rules in the favor of the Mahanoy Area School District, the rights of students across the entire country may be restricted. Students, by simply posting an explicit message on social media, will be subject to harsh punishment, and legally so, as the decision of the high court will govern the entire nation. If school districts have the legal authority to suspend students for actions taken off school property, how far will districts go in punishing students for their off campus actions?
On the other hand, if the school rules in favor of Levy, students will be free to post from their home what they desire on social media, as long as it is not threatening and does not involve school property. Because the Supreme Court is not likely to take another case like this for many years, its decision will impact how students’ social media conduct evolves in the coming years.
Only time will tell, and that time is set to expire any day now. A ruling is imminent.