Law & Courts

Diverse Array of Groups Back Student in Supreme Court Case on Off-Campus Speech

By Mark Walsh — April 01, 2021 5 min read
In this photo taken Tuesday, Aug. 27, 2013, Mary Beth Tinker, 61, shows an old photograph of her with her brother John Tinker to the Associated Press during an interview in Washington. Tinker was just 13 when she spoke out against the Vietnam War by wearing a black armband to her Iowa school in 1965. When the school suspended her, she took her free speech case all the way to the U.S. Supreme Court and won. Her message: Students should take action on issues important to them. "It's better for our whole society when kids have a voice," she says.

Two high school students from an earlier generation whose very surname is synonymous with student free speech rights have filed a brief in the U.S. Supreme Court supporting a Pennsylvania student who was disciplined by her high school for an off-campus social media message.

“This case may have started with a student expressing strong emotion in a manner that was offensive to some in a seemingly trivial social media post. But the question now before the court could not be more important to the First Amendment rights of young Americans,” says the friend-of-the-court brief by John and Mary Beth Tinker, a brother and sister who were among a group of students who wore black armbands at their Des Moines, Iowa, public schools to protest the Vietnam War in 1965.

The discipline of the Tinkers and others who wore the armbands led to the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that student speech that did not substantially disrupt school could not be disciplined.

The question in the case now before the court, Mahanoy Area School District v. B.L. (Case No. 20-255), is whether schools may discipline student speech beyond the schoolhouse gate—off-campus speech on social media or elsewhere.

The Tinkers’ brief is one of two dozen filed by the March 30 deadline for friend-of-the-court briefs in support of Brandi Levy, who graduated last year from Mahanoy (Pa.) Area High School. Education Week previously reported on those who filed briefs supporting the school district, which include President Joe Biden’s administration as well as school board and administrator groups and some professors.

Levy was a high school freshman in 2017 who was upset over being placed on the junior varsity cheerleading team instead of the varsity squad, as well as over other recent frustrations.

Levy posted a message on Snapchat one Saturday night that said “F*** school ... f*** cheer f*** everything.” School officials removed her from the cheerleading team.

The Tinkers have tended carefully to the legacy of their landmark case over the decades, even as the Supreme Court has curtailed student speech rights by backing the discipline of a student who delivered a speech full of sexual innuendo before a school assembly, in Bethel School District v. Fraser in 1986, and of a student who displayed a banner outside school that said “Bong Hits 4 Jesus,” in Morse v. Frederick in 2007.

The Tinkers argue in their brief that while Levy’s offensive Snap message may seem relatively “trivial” or “inconsequential,” her case still presents an issue “of no small constitutional significance.”

“Like all important First Amendment cases, this one is about power, and the authority [the school district] asks this court to approve is by any measure extraordinary,” the Tinkers’ brief says. “Even petty officials have the ability to crush individual rights, and for that reason the court has held that the Bill of Rights limits boards of education and teachers who may feel less sense of responsibility to the Constitution.”

Religious liberty groups weigh in for the student

Levy is represented by the American Civil Liberties Union, as the Tinkers were more than 50 years ago. Among the groups that filed briefs in support of the former cheerleader are conservative legal groups that find themselves at odds with the ACLU on some education issues.

A brief by the Alliance Defending Freedom and Christian Legal Society, two religious liberty organizations, argues that students with religious views are often subject to school discipline for their speech, and “that this case involves a minor’s speech highlights the need to prevent schools from invading parents’ proper sphere.” The brief was co-written by Kenneth W. Starr, the former U.S. solicitor general under President George H.W. Bush, who as a private lawyer argued the case for upholding the discipline of the student in the “Bong Hits” case.

Another right-leaning group, Parents Defending Education, filed a brief in support of Levy that also stresses parents’ rights to control their children’s upbringing.

“The school district takes the wrong lesson from history,” the group’s brief says. “The Latin phrase ‘in loco parentis’ means ‘in the place of a parent.’ … It never meant ‘displace parents.’”

A brief from the Foundation for Individual Rights in Education, the National Coalition Against Censorship, and the Comic Book Legal Defense Fund argues that schools have long had trouble dealing with students’ use or consumption of new media, like comic books generations ago or social media today.

“From MySpace to Snapchat, courts have struggled for nearly two decades now to properly account for the First Amendment rights of students like [Levy] when they express themselves on digital platforms,” the brief says.

A brief from several individual teachers as well as the National Council of Teachers of English argues that allowing schools to discipline students for off-campus speech would be a threat to recent examples of student activism against racial injustice, such as the flurry of social media accounts that emerged from high school students following the 2020 death of George Floyd in Minneapolis policy custody.

“Using social media platforms to call out their peers for racist behavior, students have taken to Instagram, Snapchat, and Twitter to hold friends and classmates accountable for behavior they deem unacceptable,” the brief says.

A group of 192 students who serve (or have served) as student members of their local school boards filed a brief stressing that the expanded authority to discipline student speech sought by the Mahanoy district would subject “core political speech” by students to greater scrutiny and would chill efforts by students to use their voices to advocate for change.

Based on the legal filings of the district and its supporters, the student brief says, “one might be forgiven for believing that social media is a dystopian hellscape for students where little occurs that is not bullying and harassment.”

But, the brief says,"the same virtual megaphone that can be used for ill can be, and more often is, used for good,” such as organizing protests and raising awareness of social and political issues.

A brief by the National Press Law Center and other school journalism groups argues that student journalists are increasingly publishing their work, which often involves exposing problems or misdeeds at school, on independent websites or social media to avoid school censorship.

“The First Amendment protects student journalists’ ability to publish their work off campus without reprisal from school administrators,” the brief says.

The case will be argued April 28.

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