Last week, the Supreme Court heard an important case about student free speech rights. The case, Mahanoy Area School District v. B.L. concerns a cheerleader who was suspended from her junior varsity cheerleading team following a Snapchat post where she wrote “fuck school, fuck softball, fuck cheer, fuck everything.” Another student screenshotted the post and turned it in to school officials. The ACLU sued on behalf of the student, arguing that the school had violated cheerleader Brandi Levy’s First Amendment rights. The speech was posted online, on a weekend, outside of school property. The Supreme Court must decide whether school officials have the authority to curtail student speech online and outside of school. This case has potentially far-reaching implications for student organizing and activism surrounding school-related matters.
The ACLU Supreme Court brief for the case noted that the past few years have seen an alarming extension of school discipline from speech made in school to speech made online. The brief notes that while courts have long given schools broad disciplinary powers over speech made on campus and at school events, the question of whether administrators can discipline students for speech made online remains unresolved. Disciplining a student for posting a four-letter word is a harsh step but in recent years school officials have disciplined students for a variety of speech made online, including speech with more political content. While Mahanoy v. B.L. does not concern political speech, per se, it opens questions of when and where students can be disciplined for expressing opinions from political positions to expletive-laden complaints.
Previous Supreme Court cases have held that students do have free speech rights, albeit limited by school officials’ need to uphold their educational and custodial duties. In the landmark Supreme Court case Tinker v. Des Moines, the Supreme Court upheld students’ right to wear black armbands in protest of the Vietnam War. However, while Tinker did acknowledge that students do not “shed their constitutional rights…at the schoolhouse gate,” Tinker also established that school officials could discipline students in cases of “substantial disorder.”
Does posting a four-letter word outside of school hours create Tinker’s “substantial disorder” in the school environment?
While several Justices wondered at the practical ability of schools to enforce a ban on four-letter words, the problem of whether off-campus online speech can be punished by school officials invokes broader questions of which rights students have to protest anything related to school. As the ACLU attorney representing Brandi Levy put it, “expanding Tinker would transform a limited exception into a 24/7 rule.” The Justice Department proposed the standard that officials could only regulate off-campus speech if it is related to school matters and could cause a “substantial disruption.” But this kind of restriction could preclude students from discussing online any kind of activism to change their school communities if they knew that speech could be punished by schools. Justice Kagan pointed out that the Justice Department standard would allow school officials to discipline students for emailing each other about refusing to do English class homework until the syllabus contains more people of color or a student warning other students about homophobia at school. This proposed standard would fundamentally undermine student speech. Any speech or activism undertaken by students online, from organizing against teacher abuses to talking about school activities could be subject to discipline by school officials. This standard also opens the door to drag-net surveillance of students.
Federal courts have noted that “the nation’s high school students, some of whom are of voting age, should not be foreclosed from…national dialogue.” Student walkouts protesting gun violence led the national conversation on school shootings and gun violence. On smaller levels, student activism can be transformative in schools. Students are most affected by school policies, and should have the power to call out injustices and advocate for school policy change. Allowing school officials to punish students for any speech about school – even online outside of school activities – fundamentally undermines students’ ability to express themselves. Much of student organizing, activism, and yes, complaining about cheer using four-letter words, happens online. The Supreme Court should let students leave the schoolhouse gate behind online.