Two high school students from an earlier generation whose very surname is synonymous with student free speech rights have filed a brief in the U.S. Supreme Court supporting a Pennsylvania student who was disciplined by her high school for an off-campus social media message.
鈥淭his case may have started with a student expressing strong emotion in a manner that was offensive to some in a seemingly trivial social media post. But the question now before the court could not be more important to the First Amendment rights of young Americans,鈥� says the friend-of-the-court brief by John and Mary Beth Tinker, a brother and sister who were among a group of students who wore black armbands at their Des Moines, Iowa, public schools to protest the Vietnam War in 1965.
The discipline of the Tinkers and others who wore the armbands led to the Supreme Court鈥檚 landmark 1969 decision in , which held that students do not 鈥渟hed their constitutional rights to freedom of speech or expression at the schoolhouse gate鈥� and that student speech that did not substantially disrupt school could not be disciplined.
The question in the case now before the court, (Case No. 20-255), is whether schools may discipline student speech beyond the schoolhouse gate鈥攐ff-campus speech on social media or elsewhere.
The is one of two dozen filed by the March 30 deadline for friend-of-the-court briefs in support of Brandi Levy, who graduated last year from Mahanoy (Pa.) Area High School. Education Week previously reported on those who filed briefs supporting the school district, which include President Joe Biden鈥檚 administration as well as school board and administrator groups and some professors.
Levy was a high school freshman in 2017 who was upset over being placed on the junior varsity cheerleading team instead of the varsity squad, as well as over other recent frustrations.
Levy posted a message on Snapchat one Saturday night that said 鈥淔*** school ... f*** cheer f*** everything.鈥� School officials removed her from the cheerleading team.
The Tinkers have tended carefully to the legacy of their landmark case over the decades, even as the Supreme Court has curtailed student speech rights by backing the discipline of a student who delivered a speech full of sexual innuendo before a school assembly, in in 1986, and of a student who displayed a banner outside school that said 鈥淏ong Hits 4 Jesus,鈥� in in 2007.
The Tinkers argue in their brief that while Levy鈥檚 offensive Snap message may seem relatively 鈥渢rivial鈥� or 鈥渋nconsequential,鈥� her case still presents an issue 鈥渙f no small constitutional significance.鈥�
鈥淟ike all important First Amendment cases, this one is about power, and the authority [the school district] asks this court to approve is by any measure extraordinary,鈥� the Tinkers鈥� brief says. 鈥淓ven petty officials have the ability to crush individual rights, and for that reason the court has held that the Bill of Rights limits boards of education and teachers who may feel less sense of responsibility to the Constitution.鈥�
Religious liberty groups weigh in for the student
Levy is represented by the American Civil Liberties Union, as the Tinkers were more than 50 years ago. Among the groups that filed briefs in support of the former cheerleader are conservative legal groups that find themselves at odds with the ACLU on some education issues.
A brief by the , two religious liberty organizations, argues that students with religious views are often subject to school discipline for their speech, and 鈥渢hat this case involves a minor鈥檚 speech highlights the need to prevent schools from invading parents鈥� proper sphere.鈥� The brief was co-written by Kenneth W. Starr, the former U.S. solicitor general under President George H.W. Bush, who as a private lawyer argued the case for upholding the discipline of the student in the 鈥淏ong Hits鈥� case.
Another right-leaning group, Parents Defending Education, in support of Levy that also stresses parents鈥� rights to control their children鈥檚 upbringing.
鈥淭he school district takes the wrong lesson from history,鈥� the group鈥檚 brief says. 鈥淭he Latin phrase 鈥榠n loco parentis鈥� means 鈥榠n the place of a parent.鈥� 鈥� It never meant 鈥榙isplace parents.鈥欌��
A the Foundation for Individual Rights in Education, the National Coalition Against Censorship, and the Comic Book Legal Defense Fund argues that schools have long had trouble dealing with students鈥� use or consumption of new media, like comic books generations ago or social media today.
鈥淔rom MySpace to Snapchat, courts have struggled for nearly two decades now to properly account for the First Amendment rights of students like [Levy] when they express themselves on digital platforms,鈥� the brief says.
A several individual teachers as well as the National Council of Teachers of English argues that allowing schools to discipline students for off-campus speech would be a threat to recent examples of student activism against racial injustice, such as the flurry of social media accounts that emerged from high school students following the 2020 death of George Floyd in Minneapolis policy custody.
鈥淯sing social media platforms to call out their peers for racist behavior, students have taken to Instagram, Snapchat, and Twitter to hold friends and classmates accountable for behavior they deem unacceptable,鈥� the brief says.
A group of 192 students who serve (or have served) as student members of their local school boards stressing that the expanded authority to discipline student speech sought by the Mahanoy district would subject 鈥渃ore political speech鈥� by students to greater scrutiny and would chill efforts by students to use their voices to advocate for change.
Based on the legal filings of the district and its supporters, the student brief says, 鈥渙ne might be forgiven for believing that social media is a dystopian hellscape for students where little occurs that is not bullying and harassment.鈥�
But, the brief says,"the same virtual megaphone that can be used for ill can be, and more often is, used for good,鈥� such as organizing protests and raising awareness of social and political issues.
A and other school journalism groups argues that student journalists are increasingly publishing their work, which often involves exposing problems or misdeeds at school, on independent websites or social media to avoid school censorship.
鈥淭he First Amendment protects student journalists鈥� ability to publish their work off campus without reprisal from school administrators,鈥� the brief says.
The case will be argued April 28.
