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Where the Schoolyard Ends: School Speech in the Information Age

Spencer Campbell - Law Clerk at Freking Myers & Reul

Where do we draw the line between protecting students’ right to free speech, and protecting the education environment of our schools?
This is the central question in the arena of School Speech law, which has been defined by landmark U.S. Supreme Court cases over the years. Tinker v. Des Moines held in 1969 that students could protest the Vietnam War so long as they did not “materially disrupt the classroom” or cause “substantial disorder” within the school. In a 2007 case, Morse v. Frederick the Supreme Court held that students could not use their student speech to encourage illegal activity when a group of Alaskan students raised a banner that said, “Bong Hits 4 Jesus.” But as everyone knows by now, the internet has changed everything, and both school and student speech look different today than they did 60 years ago.
On June 23, 2021, the U.S. Supreme Court heard a case about a teenager’s controversial Snapchat messages which criticized her school, her cheerleading team, her softball team, and, well, everything else. The student’s name is Brandi Levy, and when she found out she did not make the varsity cheerleading squad at her high school, she vented her frustration to her private friends on the app, Snapchat. “F*** school f*** softball f*** cheer f*** everything,” said the message, (with the full curse word) which circulated to a few hundred of her followers on the app before the message self-deleted after 24 hours. In response to her social media post, Ms. Levy was suspended from the cheer squad. When her appeal to the school board failed, she and her parents sued in federal court.
The case, Mahanoy Area School District v. B.L., made its way up to the United States Supreme Court, and is sure to be a landmark case for school speech in the information age. The Court decided that Ms. Levy’s speech was protected, and the school was wrong to suspend her. After all, the Court repeated its view from the 1969 Tinker case that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The Court did caution, however, that while the school in Ms. Levy’s case did not have a compelling special interest to restrict her freedom of speech, other circumstances might allow them to discipline a student for speech that disrupts classes, involves threats or bullying, or somehow interferes with the school’s ability to function. Ultimately, Mahanoy is a win for student speech. It affirms a student’s right to speak freely, even about school matters, when that speech happens off campus and the school has no special interest in the matter.
If you are experiencing a student speech issue, or any school-related legal concern, the attorneys at Freking Myers & Reul are ready to consult with you.