BRANDI LEVY

“I was frustrated. I was upset. I was angry. And I made a post on Snapchat. I said, ‘F school, F cheer, F softball, F everything.’”

— 14-year-old Brandi Levy, Mahanoy City, PA high school freshman

It seems that Brandi Levy didn’t make the varsity cut as a frosh cheerleader for the Mahanoy Area High School Golden Bears squad.

So she sounded off on social media, as many are wont to do.

When she posted the vulgar message to her friends on a weekend in 2017 — off-campus, while at a convenience store — she didn’t give it any more than a passing thought.

Four years later the specter has exploded into an issue of the most grandiose proportion.

As in U.S. Supreme Court grandiosity.

Days after she made the post, the school accused Brandy of breaching a code of conduct and suspended her from cheerleading for an entire year.

Levy’s Snapchat post and the ensuing punishment represent the fulcrum of a major U.S. Supreme Court case which examines and tests the boundaries of school discipline and the rights of students to free speech.

How much authority do schools have over off-campus student speech via social media?

“This is the first time that the U.S. Supreme Court is going to decide whether the rules that apply to kids when they’re in school also apply to their speech when they are outside of school,” noted Sara Rose, an ACLU attorney defending Levy in the case.

In a landmark 1969 Supreme Court case — Tinker v. Des Moines — the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But the caveat was that educators can limit speech on school property when it’s materially disruptive.

The handling of school-related speech expressed off-campus, was not addressed.

Paul Healy, executive director of the Pennsylvania Principals Association which is backing the Mahanoy Area School District in the case, remarked that “this case is so important because it has implications, not just for school leaders in Pennsylvania, but across the nation to be able to provide for the safety and welfare of students in their schools.”

Yet two lower federal courts sided with Levy in the dispute.

They ordered her returned to the team in 2017, allowing her to continue her cheerleading career.

Pursuant, a federal appeals court affirmed the decision, saying that a school’s authority to enforce the rules “does not apply off-campus.”

Brandi Levy’s father, Larry, who sued the school with help from the ACLU, observed that, “if they would have just taken her aside and said, ‘Watch; be careful.’ But the action they took, I think reached above and beyond where they should be.”

Attorney Rose further opined that, “When they’re not under their school supervision, kids are under their parents’ supervision and the parents are the ones who should be able to decide what’s appropriate for their children to say when they’re at home.”

Justin Driver, a Yale law professor, told The Washington Post, “This is the most momentous case in more than five decades involving student speech.”

ACLU legal director Witold Walczak explained that the decision of the Court will affect 50 million public school students in the country.

Expounding, he feels that the legal standard for student speech, which is currently regulated based on how “disruptive” it may be, is far too broad.

In actuality, schools can punish students for any kind of controversial speech or expression.

“Just to use examples on the politics of the school district, if you wear a T-shirt with a Confederate flag, it could be deemed disruptive. In a different school district, saying ‘black lives matter’ is disruptive. So it would allow schools to regulate students’ political, religious, ideological speech, which is really dangerous,” Walczak said.

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.

What makes this case a bit more thorny, is that in today’s cyber world, the scope of harassment and bullying is ever-expansive, including even singular instances of unwanted sexual remarks, name-calling, or giving offense.

Rules requiring “respect” for others, sanctioning “inappropriate” conduct, and prohibiting “negative” online comments about other students are common to the point of being linchpins in school policies protecting against harassment and bullying.

In this context, it would not be a reach to say that Levy’s snaps were inappropriately aggressive toward her team, coaches, and teammates — particularly to a freshman classmate who made the squad — and caused them distress, detracting from the educational process.

At oral arguments, the Justices probed the boundaries of critical, unpleasant, unkind, or offensive comments that could be construed as harmful to students’ rights.

Justice Sonia Sotomayor asked, as an example, whether a school could discipline a group of classmates who say to a student outside of school grounds, something to the effect of, “You’re so ugly, why are you even alive?”

Justice Elena Kagan queried whether a school could ban the Confederate flag, or a shirt bearing a message proclaiming, “homosexuality is a sin.”

She also wondered about boys who create web sites ranking girls on their appearance and discussing “sexual activities.”

Justice Clarence Thomas asked about student comments regarding “Black Lives Matter, Antifa, or Proud Boys.”

Justice Samuel Alito pontificated about gender pronouns.

Could a school discipline a student who “believes that someone who is biologically male is a male” and wittingly continues to use male pronouns, in referring to a transgender-female student?

If any of these incidents made students feel harmed and discriminated against, does the school have the power to punish the offender?

Schools want the authority to discipline students for behavior before it becomes “severe or pervasive,” and “disruption” presents a lower bar.

Several Justices seemed skeptical that Levy’s profane comments, gestures and histrionics even met the threshold of “disruption.”

Brandi Levy’s posts did not offend people on the basis of race, sex, or disability.

Therefore the Court reserves the option to say — for now — only that schools are not categorically barred from disciplining students for online messages just because they hit “send” while off campus.

This would leave room for a future case, untangling the more complex issue of what, if any, disciplinary definitions of harassment and bullying, sufficiently respect, and do not violate, free speech.

On or off campus.

“If I had to do it over again, I probably wouldn’t have posted that. I feel like I just wouldn’t have posted it but I still would have had those same feelings.”

— 18-year-old Brandi Levy, Bloomsburg University freshman, 2021

The Supreme Court is expected to decide the case in June.

The Justices have been described as being “frightened to death,” by what it all means, not to mention, the ramifications.

[Editor’s Note: This piece was written by Mr. Kaplan in May 2021.]

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