On Wednesday, the U.S. Supreme Court will hear oral arguments in , an important case about whether school officials may discipline students for off-campus speech.
Education Week鈥檚 main preview of the case, including an interview with student Brandi Levy, is here. And we wrote separate stories about friend-of-the-court briefs in support of the Pennsylvania school district, about briefs supporting the student, and about a novel brief by students who serve on school boards (also in support of the student).
As the arguments approach in this potentially landmark case, we thought we would remind readers what is at stake and point out how they may listen to the arguments for themselves.
What is this case about?
Levy was a freshman at Mahanoy Area School District in 2017 when she became upset over not being selected for the varsity cheerleading team. She was at a convenience store鈥攐ff the school campus鈥攐n a Saturday when she posted a short, profane message on Snapchat expressing her frustration with cheerleading and school. Her cheerleading coaches learned of the 鈥渟nap鈥� and suspended her from the JV team for one year.
What are the legal issues?
Levy sued under the First Amendment鈥檚 guarantee of free speech. She was reinstated to the cheerleading team in the short run, and two courts ruled in her favor. Most significantly, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that the key Supreme Court ruling on student speech, , generally does not give school officials the authority to discipline off-campus speech by students. Tinker was the 1969 high court decision involving students who had worn black armbands to school to protest the Vietnam War. The ruling said student speech was protected as long as school was not substantially disrupted.
What is the school district鈥檚 view of the case?
The Mahanoy Area School District asked the Supreme Court to take up its appeal of the 3rd Circuit鈥檚 decision, and the high court agreed to do so. The district argues that schools have long regulated off-campus behavior by students, and that remote learning during the pandemic has further blurred lines between campus and off-campus conduct. Levy鈥檚 Snapchat message was directed at her school friends and fellow cheerleaders and disrupted that community, the district says.
What are the arguments for the student?
Lawyers for Levy argue that applying the Tinker case outside of school would seriously undermine the speech rights of students. They point out that under Supreme Court precedent and traditional First Amendment principles, Levy could not be punished outside of school for using the four-letter word she repeated in her Snapchat post. And they propose a test in which school officials would still have authority over the 鈥渟chool environment.鈥� That would include the campus or its immediate environs during school hours, at a school-sponsored or -supervised event, on a school-sponsored website, while en route to or from school, or even from students鈥� own homes if they are engaged in school-sponsored remote learning or using a school laptop issued for school work.
How are the Supreme Court justices likely to view this case?
We鈥檒l learn a lot more from the arguments, but here are a couple of things to think about. Four members the current court remain from the last time they heard a student speech case. That was in 2007, which involved a student who unfurled a large banner outside his high school that said, 鈥淏ong Hits 4 Jesus.鈥� School officials perceived it as a pro-drug message and suspended the student. The Supreme Court upheld the authority of school officials to regulate student speech advocating illegal drug use.
The four members of the current court who participated are Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr. Roberts wrote the majority opinion. Thomas and Alito joined it, but they each wrote concurrences carving out their views on student speech in greater detail. Breyer, the only one of the four who is a member of the court鈥檚 liberal bloc, wrote an opinion concurring in the judgment in part and dissenting in part.
Another way to look at it is that two members of the court are parents of K-12 students鈥擩ustices Brett M. Kavanaugh and Amy Coney Barrett, though their children attend private schools. Roberts and Justice Neil M. Gorsuch have children who finished high school in recent years.
Can I watch or listen to the arguments?
Since last May, the Supreme Court has conducted all of its arguments over the telephone due to the pandemic. They are not on Zoom or any other video platform, even for the justices and the participating lawyers. But anyone can listen to the arguments live or later in the day, or the next day, or whenever they want.
The best place to go to listen live is . For some bigger cases, C-SPAN also puts the audio up on one of its cable channels, but that depends on whether Congress is in session and other factors. The court posts the audio on its website after arguments are completed.
The argument in the student speech case is April 28 beginning at 10 a.m. Eastern time. It is scheduled to go for one hour, but in reality the telephone arguments have dragged on a bit, and the argument in this case is likely to run closer to 90 minutes.
When can we expect a ruling?
The court should it issue its ruling in the case by the end of the term, in late June or early July.
