Law & Courts

Educators Look for Guideposts in Supreme Court Ruling on Student Free Speech

By Denisa R. Superville — June 23, 2021 6 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
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The education community offered measured responses to the U.S. Supreme Court’s ruling Wednesday that a Pennsylvania school district violated a student’s First Amendment rights when it disciplined her for a vulgar Snapchat message after she did not make the varsity cheerleading squad.

L. Earl Franks, the executive director of the National Association of Elementary School Principals, said while he respected the court’s majority’s opinion in the 8-1 decision, he worried that it could establish a precedent for similar cases in which the disruption to the school community is wider than those alleged in the Mahanoy Area School District v. B.L. case.

The justices held that the impact of the student’s actions in this case was not enough to satisfy the school’s special interests in regulating student speech, including preventing disruption at school.

“The principal ... does not always know what conduct is going to be disruptive,” said Franks. While responses are based on a school’s code of conduct, they’re also “a judgment call,” he said.

The NAESP, the National Association of Secondary School Principals, AASA, the School Superintendents Association, and the National School Boards Association had filed a friend of the court brief in support of the Mahanoy Area School District, asking the court to uphold the district’s actions.

School administrators and teachers and even lower court judges have been in desperate need of guidance in this area, and I’m afraid this opinion provides relatively little.

Daniel Domenech, executive director of the AASA, the School Superintendents Association, was disheartened by the court’s ruling that the decision to discipline the student violated her First Amendment rights.

“To make that kind of behavior public, as was done in that particular case, and to say there’s nothing the school can do about it—it’s disappointing,” Domenech said.

But he said the more important issue for the organization was that districts retained the right to take action in cases that included bullying, harassment, or could cause harm to others.

“That’s still something that districts can act on,” he said.

At the same time, he said school administrators might still be unclear about when they can respond.

See Also

Image shows a picture of Brandi Levy in her cheerleading uniform in front of Mahanoy Area High School.
Brandi Levy, now an 18-year-old college freshman, was a cheerleader at Mahanoy Area High School in Pennsylvania when she made profane comments on Snapchat that were at the center of a U.S. Supreme Court case on student speech rights.
Danna Singer/Provided by the American Civil Liberties Union

“The best we can do is to provide them as much guidance as possible so that before they act, they can assess the chances of whatever they do being upheld or repelled,” Domenech said. “But it’s definitely far from clear.”

Off-campus speech at the center of the debate

One of the main concerns for administrators, based on a previous ruling in the case by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, was that districts would lose the ability to regulate all off-campus speech, including those that may include bullying, harassment, and attacks on teachers.

Franks said he agreed with Justice Clarence Thomas, who filed the lone dissenting opinion in the Supreme Court, that the majority’s opinion was too vague to provide guidance for educators on future cases and may have been clouded by the school district’s harsh response to the student’s actions.

Still, Franks said he is “happy that the majority left open and suggested that educators could take action against some off campus speech,” and that it left some of the determination to the judgement and expertise of educational professionals.

Ronn Nozoe, the chief executive director of the National Association of Secondary School Principals, also had mixed responses to the ruling.

“We’re glad that the ruling left the door open ... to ensure that school administrators and school leaders retain the right to take action—disciplinary or otherwise—on matters that happen outside of school that threaten or jeopardize the normal and safe operations of school,” he said.

But Nozoe also noted that principals have to make decisions quickly in the age of social media, and he thinks the Mahanoy ruling could make it more complicated for school leaders.

“You’ve got to consider this in real time,” he said. “These folks are trying to protect kids and make sure that things don’t spiral out of control, because once they get out of control, they become very hard to rein in.”

“None of our members are out there to curtail free speech,” he said. “In fact, what we are now pushing for is elevating student voice.”

Justin Driver, a Yale University law professor who wrote an acclaimed book about student rights cases in the Supreme Court, said he found the majority opinion so narrow in scope as to settle little about regulation of off-campus speech.

“School administrators and teachers and even lower court judges have been in desperate need of guidance in this area, and I’m afraid this opinion provides relatively little,” he said.

However, Driver, a supporter of broad First Amendment rights for students, was heartened by some of Breyer’s language about schools as “nurseries of democracy” and as promoters of student expression.

“It’s been a long time since a Supreme Court [free speech] opinion sounded in that register,” he said.

Emily Kirkpatrick, executive director of the National Council of Teachers of English, echoed that last sentiment. The group, which filed a friend of the court brief in support of the student, was worried about administrators having unfettered ability to regulate what students say off campus.

“We are encouraged because the Supreme Court ruled 8-1, very clearly in favor of the student—which means in favor of protecting student voice and freedom of speech, particularly in off-campus environments,” Kirkpatrick said.

That’s especially important “in this digital age, when students are not only expressing themselves, but also igniting so much important change in their communities,” she said.

Where the Supreme Court left things vague and what it emphasized

Martha McCarthy, who teaches education law at Loyola Marymount University’s school of education in Los Angeles, also considered the Breyer opinion vague on several points.

“I think school personnel should feel quite relieved” that the high court did not endorse the ruling below by the federal appeals court that restrictions on student speech did not apply categorically to off-campus speech.

But the high court opinion was vague on when schools could regulate off-campus speech in the areas Breyer generally identified, such as threats and bullying.

“It leaves a lot of room for how they are going to define that,” McCarthy said. “But leaving precise descriptions to future cases is not very helpful.”

While the court ruled that the Mahanoy school district violated student Brandi Levy’s First Amendment rights, it also recognized that schools have an interest in regulating speech off campus that includes bullying and harassment.

“We are actually quite pleased with the decision because what we’d asked to court to do was to overturn that part of the appellate court decision that said that schools could not regulate student speech that happened outside of campus,” said Francisco Negrón, the general counsel for the National School Boards Association.

The court recognized that “speech, in modern times, happens in a variety of ways,” Negrón said. “It’s not so much where the speech happens, what matters is the impact or the effect it has on the school setting.”

Negrón said the decision will clarify for school administrators when they can act, and will help schools and districts as they adopt policies and practices.

“I think that’s significant for schools to understand that mere criticism without disruption or infringement on the rights of others is not enough,” Negrón said.

Both Negrón and Fitzpatrick said they think the court provides enough guidance for educators to determine in which situations they can respond.

“When the speech is out of school, the court is going to ask schools to look at the nature of the speech, whether it’s having an impact on the school setting, and what kind of speech it is,” Negrón said.


Mark Walsh, Contributing Writer contributed to this article.


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