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.