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Dirty language vs. disruption at the Supreme Court

Justices signal broad protection for off-campus student speech


Brandi Levy speaks with American Civil Liberties Union of Pennsylvania attorneys on Wednesday in Mahanoy City, Pa. Associated Press/Photo by David McKeown/Republican-Herald

Dirty language vs. disruption at the Supreme Court

A nearly unanimous Supreme Court tightly restricted situations where public school administrators have a right to regulate what students say when they aren’t at school.

In Wednesday’s 8-1 opinion, the justices sided with a high school student whose parents challenged her yearlong suspension from a cheerleading squad for online posts outside school hours. In 2017, then–14-year-old Brandi Levy, a student at Pennsylvania’s Mahanoy Area High School, used her personal cell phone while off campus to send two Snapchat posts containing vulgar images and language criticizing the school to a private group of online friends. Her comments made it back to coaches and administrators, who kicked her off the team.

School attorneys argued Levy’s comments disrupted school operations and harmed team morale, but the court dismissed that argument as overblown. Writing for the majority, Justice Stephen Breyer said public schools can regulate off-campus student speech in limited circumstances such as severe bullying, harassment, or threats aimed at teachers or other students. But he noted Levy’s posts were not the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify disciplinary action.”

Breyer concluded parents, not school officials, are generally responsible for off-campus speech. Schools, as “nurseries of democracy,” have an obligation to protect unpopular speech, he said: “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”

Justice Clarence Thomas, the lone dissenter, argued schools historically could regulate off-campus conduct, and he criticized the majority for creating a “test untethered from history” and providing little guidance to courts and institutions.

Adam Steinbaugh, an attorney for the Foundation for Individual Rights in Education, said the decision reaffirms the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District. There, the justices concluded a school could regulate students’ on-campus speech if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

“What the Supreme Court did is to say that when we said ‘actual disruption’ we meant actual disruption,” Steinbaugh said. “It’s not just that other people are uncomfortable or offended or that there are hurt feelings, but they are looking for something more than that.”

Students who post unpopular opinions online about Biblical marriage, sexuality, or critical race theory can take comfort in the language of the opinion, provided their comments don’t target an individual at their school, according to Steinbaugh: “Even if you find those beliefs objectionable or odious, that doesn’t transform them into actual disruption.”

Though Justice Samuel Alito’s concurring opinion emphasized the ruling isn’t applicable to colleges and universities, Steinbaugh said parts of the opinion suggest the standard for actual disruption would be even higher at the collegiate level.

Parents may rightly disapprove of Levy’s angry Snapchat post and wonder why her parents made a federal case out of it. But Steinbaugh said the principle at stake is more important than her bad language. “The same rules that apply to her Snapchat are the ones that also govern political speech,” he said—meaning a good result came, for once, from not so good words.


Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C.

@slntplanet

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RCRE8109

The sad thing is Ms. Levy’s thinks she won. But what? Justification to get away with venting her anger in an unhealth way? The next time she loses control and vents like that, the people who she targets may retaliate in a way that puts her six feet under. No expensive legal team will be able to repair that damage. As C. S. Lewis said in the Magicians Nephew, “All get what they want; they do not always like it”.

JimVC

That's Mahanoy Area High School, not "Mahoney" (the photo caption gets it right).

BTW, this comment was posted at 14:07 EDT, NOT 14:07 GMT!

WORLD's Mickey McLeanJimVC

Thank you for pointing out the error. We have corrected the spelling in the article.

Mickey McLean
WORLD’s Executive Editor for Audience Engagement