It’s wrong for public schools to discipline off-campus student speech


Joel C. Bautista | The Ticker)

Alexander Sitnikov

The debate over student speech regulations has existed for many decades, and the topic is again being tested in an ongoing case at the Supreme Court. The First Amendment broadly protects every individual’s freedoms of speech and expression, including those of students.

Though public schools correctly have the power to discipline some student speech that occurs on campus grounds, they should not be able to discipline student speech that occurs off-campus — with narrow exceptions.

The case, Mahanoy Area School District v. B. L., was argued at the Supreme Court last week and could become a pivotal case for students when it is decided by the end of June.

Brandi Levy, a public high school student and junior varsity cheerleader, posted a Snapchat story with profanity expressing her frustration about not making the school’s varsity cheerleading team, according to The Washington Post.

The lawsuit arose after the school suspended her from the team for violating its code of conduct, which prohibited profanity and negative information about cheerleading on the internet.

Although this is a legally gray area due to the ever-changing technological world and the lack of precedent, the school was wrong to suspend her team membership. Applying this code of conduct while Levy was off-campus is a violation of her First Amendment rights.

When students enroll in a school or join a team, they do not surrender their right to free speech while off-campus.

The school argued that the decision in the 1969 Supreme Court case Tinker v. Des Moines, which said that schools could punish student conduct that “materially and substantially” disrupts or interferes with the operation of the school, can apply to off-campus speech.

However, the decision in Tinker should not apply to off-campus speech, except in specific instances where the speech would clearly be disruptive and alarming when the students return to campus. These exceptions include physical threats, bullying or harassment directed toward others in the school community.

If a student is off-campus and harmlessly venting their opinion about something that happened with a school team, then schools should not have the authority to punish them for that. It is hardly different from trying to punish students for cursing in their conversations at home or on their train ride to school.

When Levy posted on Snapchat, she was speaking out in her private life while off school grounds. Her audience was not “captive,” as they did not need to open her story nor spread its contents around to people who did not even have access to her story in the first place, whereas it would be problematic if she said those words out loud in school since the students would be “captive” because they were physically around her and could not avoid hearing.

President Joe Biden’s administration filed briefs in support of the school, and claimed that schools should be able to regulate off-campus speech that “threatens team cohesion.” However, Levy’s speech did not threaten team cohesion nor meet the “substantial disruption” standard.

The situation itself is minor and petty, and her words did not cause any disruption nor impact to the team, despite a few students being frustrated for a short period of time.

If the Supreme Court expands the authority of schools to regulate off-campus speech, there would be a chilling effect that would be antithetical to First Amendment values.

School officials will feel more tempted to regulate speech that they dislike or deem “inappropriate,” by exaggerating the potential “disturbance” that a student’s speech could have. Out of fear of potential punishment by the school, students would feel more discouraged from expressing opinions on social media.

The case is legally complex, largely because it is difficult to come up with one grand solution that will be sufficient for every off-campus free speech case. Despite the magnitude of the issue, the Supreme Court needs to at least begin to tackle it, as similar cases will inevitably arise in the future.

The best move is for the Supreme Court to rule in favor of Levy, and finally clarify if and/or when public schools can regulate off-campus speech.