The Supreme Court considers thorny questions about free speech, bullying, and whether schools can discipline students for their behavior online.
https://www.newyorker.com-By Jeannie Suk Gersen
In the case of Brandi Levy, the Supreme Court is considering whether public schools may discipline students for speech outside of the school-supervised setting.Photograph by Danna Singer / ACLU / Reuters
The story of Mahanoy Area School District v. B.L. began when Brandi Levy, a high-school freshman in eastern Pennsylvania, was passed over for the varsity cheerleading team. Levy took to Snapchat to express frustration, posting a photo of herself and a friend giving the middle finger, with the caption “Fuck school fuck softball fuck cheer fuck everything.” She added, in another post, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s doesn’t matter to anyone else?🙃 ” Levy was apparently referring to the fact that an incoming freshman was put on the varsity team. According to a coach, some students who saw the posts were “visibly upset” and found them “inappropriate.” Levy was suspended from cheerleading for a year for violating the team’s rules, which require that students “have respect” for the school, coaches, and teammates, avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” The coaches as well as the school district also maintained that she violated a school rule that athletes must conduct themselves during the season “in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Levy, represented by the American Civil Liberties Union, filed a lawsuit, alleging that her suspension from the team violated the First Amendment. Last week, the Supreme Court heard oral arguments in the case, which the Justices understood not only to raise the question of whether public schools may discipline students for speech outside of the school-supervised setting but also to implicate public schools’ power to punish students for discrimination, harassment, and bullying.
The precedent for the current limits of speech in schools was set in 1969, after a group of students and adults in Des Moines decided to wear black armbands as a silent protest against the Vietnam War. Public-school administrators learned of the plan and banned the wearing of the armbands at school. The handful of students who defied the ban were suspended. The Supreme Court, in Tinker v. Des Moines Independent School District, held that disciplining the students violated the First Amendment. After all, the Court reasoned, the students’ expression of opinion did not cause “disruption” to the school—that is, it didn’t “substantially interfere with the work of the school or impinge upon the rights of other students.” During the Cold War, the Court saw the school’s disapproval and punishment of the dissenting students through that era’s lens, stating that “state-operated schools may not be enclaves of totalitarianism.” In 2007, in Morse v. Frederick, the Court, with four liberal-leaning Justices dissenting, found that an Alaska public school did not violate the First Amendment in suspending a student who displayed a “pro-drug” banner stating “BONG HiTS 4 JESUS,” at a school-supervised event. Only Justice Clarence Thomas took the view that “the First Amendment . . . does not protect student speech in public schools.”
Levy’s snaps were posted on a weekend and off-campus, while at a convenience store. It’s easy to opine that the coaches overreacted and should have been more tolerant of a student blowing off steam about school-related disappointments, the normal rough and tumble of being a teen-ager. But schools and the Court also have to take into account that, these days, students tend to do that online, whether they are at school or at home. The past year of remote school has further unmoored students’ communicative and interpersonal lives from a physical campus. If schools may discipline students for speech that is “disruptive” only when it happens to occur on campus or in a school-sanctioned setting, this may weaken their ability to address discrimination, harassment, and bullying. This is why the Biden Administration’s Department of Justice argued in the Court on the same side as the school and against the punished student. The Administration’s brief emphasized schools’ need to comply with federal civil-rights statutes, including Title IX, that require schools to address speech that is harassing on the basis of sex, race, or disability, because that speech may interfere with equal access to education.
What makes this case much harder than it looks is that ideas of what harassment and bullying are have been expanding, to include even single instances of unwanted sexual comments, name-calling, or giving offense. (New York eliminated “severe or pervasive” from its legal definition of workplace harassment in 2019; Governor Andrew Cuomo called the “severe or pervasive” standard “absurd.”) Rules requiring “respect” for others, sanctioning “inappropriate” conduct, and prohibiting “negative” online comments about other students are common in school policies against harassment and bullying. In this environment, it wouldn’t be farfetched to say that Levy’s snaps were inappropriately aggressive toward her team, coaches, and teammates, particularly the rising freshman student who made varsity, and caused them distress, detracting from the educational process. Online, I’ve seen adult public figures refer to social-media posts that are, perhaps, less aggressive or vituperative than Levy’s teen-age posts as bullying them. (Melania Trump once said that she was one of “the most bullied [people] in the world.”)
At oral arguments, the Justices probed the limits of critical, unpleasant, unkind, or offensive comments that might be understood to harm students’ rights. Justice Sonia Sotomayor asked whether a school could discipline a group of classmates who say to a female student outside of school grounds, “You’re so ugly, why are you even alive?” Justice Elena Kagan queried whether a school could ban the Confederate flag or a shirt saying “homosexuality is a sin.” She also wondered about boys who create a Web site ranking girls on their appearance and discussing their “sexual activities.” Justice Thomas asked about student comments on “Black Lives Matter, Antifa, or Proud Boys.” Justice Samuel Alito probed whether a school could discipline a student who “believes that someone who is biologically male is a male” and who uses male pronouns to refer to a transgender-female student. (He may have had in mind a recent Sixth Circuit decision that a public university violated the First Amendment when it disciplined a professor for discrimination under Title IX after he refused to use a transgender student’s preferred pronouns in class.) If any of these incidents made students feel harmed and discriminated against, would the school have power to punish the offender?
Of course, the A.C.L.U. does not wish to undermine civil-rights and anti-discrimination laws in the name of free speech under the First Amendment. In the cheerleading case, it has taken the position that there is no real conflict between free speech and equal access to education. While insisting that schools may not discipline student speech off-campus and online merely because it may cause “disruption,” the A.C.L.U. also explained that schools may indeed do so if the speech is harassing or bullying, so long as the definitions used make clear that, in order to count as harassment or bullying, the conduct must be “severe or pervasive” and “interfere with access to education.” This sounds reasonable as a matter of principle. But it is also striking that, in proposing a balance between robust freedom of speech and anti-harassment principles, the A.C.L.U. is effectively advocating drastic limits on the range of conduct that public schools may treat as harassment or bullying for discipline purposes. As Justice Sotomayor said, “The level at which speech has to arrive to meet those standards is very, very high, and I’m dubious that most of the conduct that teen-agers engage in would fit any of our traditional categories,” which include legally defined threats and harassment. That is, most of what we routinely call harassment or bullying today in most contexts does not meet the high standard of “severe or pervasive.” A one-off comment on social media expressing the idea that transgender athletes shouldn’t be on the girls’ team or use the girls’ bathroom likely would not cut it. Nor would a snipe about the “Chinese virus.” (Though we’d likely see claims that even single offensive comments about race, sex, or gender identity are severe enough to affect a marginalized student’s access to education.) Schools want the power to discipline students for behavior before it becomes severe or pervasive, and “disruption” is a lower bar. But several Justices seemed skeptical that Levy’s profane comments even met the “disruption” threshold.
The cheerleader’s case is ultimately not just about high schools. It has implications for the relation between free speech and discrimination policies at universities, where students and faculty, as adults, are assumed to have even stronger free-speech interests, including academic freedom, and are, perhaps, even more attuned to the need to be free of harassment. As schools at all levels have expanded what they consider to be discrimination, harassment, and bullying in order to promote equal access to education, it was only a matter of time before that unfettered growth came up against the First Amendment, forcing a conscious compromise between values that sometimes threaten to collide.
Because Brandi Levy’s posts didn’t offend people on the basis of race, sex, or disability, the Court has the option to say, for now, only that schools aren’t categorically barred from disciplining students for online messages just because they hit Send while off campus—a proposition with which both sides and the federal government agree—leaving for a future case the harder problem of what disciplinary definitions of harassment and bullying sufficiently respect free speech. Judging by the Justices’ questions, though, they know the problem needs untangling, on and off campus, and soon.
Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.