Brandi Levy was wrapping up her freshman year in high school in May 2017 when she learned she did not make the varsity cheerleading team for the next school year and would again be assigned to the junior varsity squad.
Her emotional response has embroiled her and her school district in a legal dispute now before the U.S. Supreme Court that could reshape the status of student free-speech rights—online speech in particular—for the first time in more than a generation.
“I was really frustrated,” Levy said. She had been told cheerleaders needed a year of JV before making varsity at Mahanoy Area High School in Pennsylvania, yet an incoming freshman girl was chosen for the top squad. Around this same time, Levy had failed to get the right fielder’s spot she wanted on her softball team. And school finals were also wearing on her.
“F*** school f*** softball f*** cheer f*** everything” said Levy’s now infamous posting on Snapchat on a Saturday that May. In case the profanities didn’t get the message across to her circle of 250 friends on the social media network, Levy (and a friend) displayed their middle fingers to the camera.
Levy was at an off-campus convenience store called the Cocoa Hut when she crafted and sent the “snap” that has turned into a major case over whether schools may discipline students for off-campus speech. Mahanoy Area School District v. B.L. (No. 20-255) is set for argument on April 28, with a decision expected by the end of the court’s term in June.
The high court is being asked to decide whether its landmark 1969 decision in Tinker v. Des Moines Independent Community School District applies to off-campus speech. Tinker, which sided with students who had worn simple black armbands to protest the Vietnam War, stands for the idea that student speech is protected under the First Amendment as long as school is not substantially disrupted.
The question about whether Tinker applies to off-campus speech has become especially critical in the age of social media, and even more so when the line between campus and off-campus activity is blurred by the prevalence of remote learning during the pandemic.
“I think it is very important for the Supreme Court to set some guidance, not only for school administrators but also for kids,” said Witold J. Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, who represents Levy and has been involved in cases involving student internet speech going back more than a decade.
The 1,000-student Mahanoy school district, which declined an interview through its lawyer, says in court papers that the question of whether Tinker applies to off-campus speech “has become especially acute because social media has made it far easier for students’ off-campus messages to instantly reach a wide audience of classmates and dominate the on-campus environment.”
‘Everybody else found out about it’
Levy, now an 18-year-old college freshman, acknowledges that her Snapchat message was of a starkly different nature than the black armbands of the Tinker case, and she did not expect her case to end up in the Supreme Court.
“I wasn’t really thinking about how this would turn out,” Levy said about her snap in a Zoom interview from her home earlier this month. “Or, like, how people would react to it.”
Levy’s cheerleading coaches did not react well to the snap.
Part of the appeal of Snapchat is that its messages are ephemeral, with those sent to one person disappearing after 10 seconds and others lasting only 24 hours.
But another Mahanoy High cheerleader, one who wasn’t even part of Levy’s Snapchat friend group, got hold of a screenshot of the snap and showed it to her mother, April Gnall, who was one of the coaches. Gnall shared it with Nicole Luchetta-Rump, the other coach and a mathematics teacher at the high school.
The screenshot also spread quickly among cheerleaders, with several members being “visibly upset” about it and asking the coaches repeatedly what they were going to do about it, Luchetta-Rump testified in a court hearing.
The coaches decided to remove Levy from the cheerleading team for the next season, citing team rules requiring that cheerleaders “have respect for your school, coaches, teachers, other cheerleaders and teams” and that they avoid “foul language and inappropriate gestures.”
“There was profanity in the snap and it was directed towards cheerleading,” Luchetta-Rump testified. “As cheerleaders, they have to be leaders and representatives of their school.”
School administrators upheld Levy’s discipline.
Joie Green, the Mahanoy superintendent, said in a deposition that she agreed that coaches could punish students for off-campus speech if the message was “directly related to the school district” and “harms the school.”
“If it’s public online, and it is a derogatory remark towards their team and that is a rule of theirs, then yes, [the coaches] have the option to discipline them,” Green testified. She added that it wouldn’t matter that the message was initiated in a closed social media group such as Snapchat because if the coaches learned of it, “obviously it wasn’t private because everybody else found out about it.”
Levy, through her parents, Lawrence and Betty Lou Levy, sued the school district under the First Amendment’s free speech clause.
“I was kind of aggravated at the fact that the school stepped in and took disciplinary action” over a message that Levy had sent on the weekend and not directed specifically at anyone at the school, Lawrence Levy, a public works department employee for Mahanoy City, a borough in eastern Pennsylvania’s coal region, said in the Zoom interview. “I was more concerned with why the school was getting involved with Brandi’s situation when it had nothing to do with the school.”
A federal district judge in the fall of 2017 issued a temporary restraining order that allowed Levy back onto the JV cheerleading team, later ruling that Levy’s dismissal from cheerleading violated her First Amendment rights. The judge found that even if Tinker extended to off-campus speech, Levy’s snap did not substantially disrupt school.
A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously ruled for the student in 2020, with two judges declaring that Tinker does not apply to “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”
The panel majority declined to decide whether Levy’s Snapchat message had disrupted school or the cheerleading program. And it said it was reserving for another day the question of whether schools could discipline off-campus student speech “that threatens violence or harasses others.”
The district blames ‘the ubiquity of smartphones’
The school district argues in a brief filed with the high court that Levy’s Snapchat message “expressed disdain and anger toward the school and cheer team and condemned her coaches’ decision-making about the varsity roster. She plainly targeted her speech at campus.”
The district argues that the 3rd Circuit’s rule would undercut schools’ authority to enforce laws in at least 25 states that require them to address off-campus harassment or bullying. The same would be true of federal laws that require schools to address student-on-student harassment, regardless of whether it occurred on campus.
These concerns are only magnified by the growth of student speech on the Internet, the district says.
“The ubiquity of smartphones, plus the added complexity of the COVID remote-learning environment, makes the decision below even less justifiable,” the district’s brief says. “Drawing lines between ‘on’ campus and ‘off’ inevitably produces arbitrary results, undermining the perceived fairness of school discipline.”
Remote learning during the pandemic has raised questions such as when school is in session and what happens when students trade messages on social media at the same time they are signed on to school Zoom or other remote platforms.
And the district argues that participants in extracurricular activities should essentially be held to a higher standard.
“This court should not transform disputes over the inner workings of school sports and extracurricular activities into [civil rights] lawsuits for money damages,” the brief says.
And for all that Levy’s case implies for the social media age and even the era of remote learning, the Mahanoy district points out that schools have regulated students’ off-campus behavior going back to at least the 19th century. It cites an 1859 decision by the Vermont Supreme Court that upheld the whipping of an 11-year-old pupil who had referred to his teacher as “old Jack Seaver” when the boy and his friends spotted the teacher in town, hours after school had let out.
“Such ‘jurisdiction, out of school hours and beyond school premises, is claimed ... because the great objects of discipline and of moral culture would be frustrated without it,’” the district says, quoting the educator Horace Mann.
The school district has received support in the form of friend-of-the-court briefs from President Joe Biden’s administration as well as numerous national groups representing school boards and school administrators.
Advocates fear a ‘dangerous restriction’ on speech
The ACLU argues on behalf of Levy that concerns about schools being unable to respond to off-campus threats of violence or online bullying are overblown. The 3rd Circuit decision already made clear that its bright-line rule about Tinker not applying to off-campus speech did not necessarily cover threats or harassing speech, the organization says.
The ACLU proposes a broad definition of the “school environment,” where school officials would retain authority to discipline student speech.
“The school environment includes all times when the school is responsible for the student, including on campus or its immediate environs during school hours, at a school-sponsored or -supervised event, on a school-sponsored website, while en route to or from school, or even from students’ own homes if they are engaged in school-sponsored remote learning or using a school laptop issued for school work,” the brief for Levy says.
When it comes to “where the school’s authority starts and stops, we actually don’t think this is a very difficult proposition,” said Walczak, of the ACLU of Pennsylvania.
The school district seems to be arguing that “if you are a public school student you are subject to this restriction wherever you go at any time of day,” Walczak said in the interview. “This would be a tremendously dangerous restriction on the free speech rights of young people. And it would also interfere with the rights of parents, who have an independent constitutional right to direct and control their children’s upbringing.”
Levy has the support of John and Mary Beth Tinker, the siblings at the center of the case that bears their name, as well as religious liberty groups, teachers, and hundreds of students who serve on public school boards.
Levy graduated from Mahanoy High last year amid the pandemic, and she now works part-time and attends Bloomsburg University of Pennsylvania, where she is studying accounting.
With her court order restoring her to cheerleading, Levy remained on the team throughout high school. She mostly avoided talking to those teammates who were upset over her 2017 Snapchat post, she said.
Thinking about her involvement with a case that is now going before the Supreme Court, Levy said: “I appreciate what I’m doing to help other students and other young people just like me to have their rights as well. I think it’s a good thing what I’m doing.”
