When “B.L.,” a high school cheerleader in rural Pennsylvania, took to social media in May of 2017 to vaguely voice some typical teen angst, it’s doubtful that she had the Supreme Court of the United States on her mind. When her parents, Lawrence and Betty Lou Levy, stepped in to request that the school re-think the punishment it doled out for their daughter’s off-campus speech, they likely were not intending to seek legal precedent for students’ rights across the country. Yet here in 2021, this is exactly where they find themselves, as their case against Mahanoy School District has been accepted for review by the Supreme Court.
How did it get this far?
The conflict started when B.L. was placed on the JV squad as a sophomore while a younger student made the Varsity squad. Unsurprisingly, this upset B.L. because she was told the year prior that all freshman must be on the JV squad. So, in typical teenage fashion, she commiserated with a fellow cheerleader while at the mall on a Saturday afternoon. On a whim, in the midst of this conversation, B.L. posted a Snapchat message about her frustrations, complete with expletives and emojis. The message disseminated to her Snapchat friends, about 250 people who had voluntarily agreed to be connected on the app. The message, as most Snapchat messages, disappeared by design 24 hours later.
By all objective measures, B.L.’s speech took place outside of the school context. It was not on school grounds; it was not during school hours; it was not at a school-sponsored event; it was not created on a school-owned device. If ever there was a definition of “off-campus,” this one fit the bill.
But some recipients of B.L.’s Snapchat took screenshots and showed them to the cheer coaches and school administrators. These students were “visibly upset” by B.L.’s message and continued to raise their concerns to the school for several days after the off-campus speech appeared and disappeared.
The cheer coach determined that B.L.’s social media posts broke the cheer team’s rules against posting any “negative information” online and revoked B.L.’s cheer team position for the rest of the school year. Her parents asked the coach to reconsider, then appealed to the athletic director, the principal, and the school board before, ultimately, filing a lawsuit against the school in federal court.
The suit claimed the rules regulating social media posts were an infringement on B.L.’s right to free speech, and the district court judge agreed with the Levy family, pointing to the Supreme Court’s landmark student speech case, Tinker v. Des Moines, as precedent. This case held that student speech cannot be regulated by schools unless the speech “materially and substantially” disrupts the school’s work or infringes on other students’ rights. The school district appealed, arguing that B.L.’s use of profanity did, in fact, create such a disruption, at least with regard to an extracurricular activity that was a privilege for the student, not a right.
The Third Circuit appeals panel gave a unanimous outcome in favor of the student. Two judges joining together for a majority opinion and held that schools cannot discipline students for off-campus speech that creates a disturbance. The third judge concurred on different grounds, namely, that the speech did not create a disturbance, so the Tinker question was not relevant.
The school district appealed again, this time to the Supreme Court of the United States, asking a single, specific question:
“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”1
The Supreme Court granted the Petition on January 8, 2021, and will hear the case on April 28, with a decision expected by the end of the term in June.
Why is Life Legal Involved?
The Levy family is represented by the ACLU of Pennsylvania, and Life Legal is not involved in the case as legal counsel to either party. However, as we reviewed the case briefs and lower court decisions, it was clear to us that this case may become a landmark ruling for students’ rights, including pro-life students whose message is deemed “disruptive.”
Consider the implications of this case on student speech: If one student’s social media post voicing frustration about cheerleading is subject to discipline because other students were upset, what is to come for student speech that speaks up against systematic murder of the youngest humans? Certainly, some ardent pro-aborts will react badly to efforts to break through the establishment party line that abortion is just a “choice.” Is that a reason to silence the student?
Moreover, many of Life Legal’s clients use the sidewalks outside high schools to provide students with facts and information about abortion that they are highly unlikely to receive in school—or anywhere else. These clients know how easy it is for teachers and administrators to cry “disruption” when what they really mean is that students are engaged and interested in what they are hearing for the first time. Our clients tell us that, nine times out of ten when there is a problem, it’s not with the students. It’s school personnel who overreact to “outsiders” giving information to “their” students.
What is Life Legal Arguing?
Our review of the briefs and decisions in the lower courts led us to the conclusion that the Supreme Court should not have agreed to hear the case. The implications of an up-or-down decision as to whether schools can punish students for off-campus speech will be significant. However, both the district court and the Third Circuit gave almost no weight to the primary facts stressed by the school in the courts below, that B.L.’s profane rant was in the context of her involvement with an extracurricular athletic activity, and that the penalty she received related solely to that activity. We believe that any decision which excludes that context poses a substantial risk of confusing rather than clarifying the law in this area. Therefore, our brief will urge the Court to dismiss the petition as “improvidently granted,” to use Supreme Court parlance.
1Mahanoy School District’s Petition for a Writ of Certiorari, pg. (I) accessible on https://www.supremecourt.gov/DocketPDF/20/20-255/151619/20200828144703420_Mahanoy%20Cert%20Petition%20-%20Final.pdf