We’re Zooming with the Dawg at 10:00 this morning. Be there!!
You have to tip your hat to those cheerleaders and their parents. Students had been on a losing streak at the Supreme Court. After Mary Beth Tinker’s seminal victory in 1969, students lost three straight, in 1986 (Bethel School District No. 403 v. Fraser), 1988 (Hazelwood School District v. Kuhlmeier), and 2007 (Morse v. Frederick). But Brandi Levy ended this streak with a strong 8-1 decision in her favor in Mahanoy Area School District v. B.L.
Brandi was miffed when she was relegated to JV cheerleading for a second year. She vented her frustration with four F-bombs (aimed at cheer, softball, school, and everything) and a raised middle finger on Snapchat. Besides the vulgarities, Brandi also complained of the unfairness of being on the JV when a freshman made varsity.
Of course Brandi had signed off on a set of rules for this extracurricular activity by which she promised to refrain from vulgar expression and be respectful of teammates and coaches. The cheerleading coaches believed that Brandi had violated her commitment, and so they suspended her from JV cheerleading for a year. Little did they know that this would later be deemed a violation of the First Amendment.
This case drew attention far out of proportion to the issue of whether or not Brandi could be a cheerleader. In particular, the decision of the 3rd Circuit alarmed educators because it held that schools lacked any authority to discipline students for expressive activity done away from school grounds and school activities. What about cyberbullying? What about abuse via social media? What about sexting and other forms of sexual harassment done through technology?
Many lawyers (including the Dawg) expected a landmark decision from the Supreme Court. After all, this was the Court’s first opportunity to wade into the murky waters of student expression off campus, including with social media sites. But the Court hardly dipped its toes into those waters. Justice Breyer’s opinion, joined by all but Justice Thomas, noted that “we do not now set forth a broad, highly general First Amendment rule.”
Rats. I thought that was exactly what they would do. Wrong again. Sigh.
So here are a few things we can derive from this opinion.
- Schools do retain the power to discipline students for expressive activities off campus, but their authority to do so is “diminished.”
- It’s highly unlikely that a court would approve of discipline based on a student’s religious or political activity when done outside of school activities.
- Since public schools are “the nurseries of democracy” school officials should vigilantly protect students who express unpopular opinions. Justice Breyer notes that “popular ideas have less need for protection.”
- The Court acknowledges the school’s significant interest in preventing bullying or harassment, the targeting of particular individuals, and threats aimed at teachers or students.
Turning to the specifics of this case, the Court emphasized that Brandi did not target or harass anyone, and did not use “fighting words.” Her Snapchat post was “vulgar” but not “obscene.” Moreover, this very short temper tantrum took place away from school, on her own time, using her own device, and aimed only at her own friends on Snapchat.
The Court acknowledged that schools must prevent material and substantial disruptions of school activities but there was scant evidence of disruption here. A few cheerleaders were upset for awhile. A few minutes were spent discussing the situation in an Algebra class.
The Court also acknowledged that maintaining the cohesion and morale of a team is important. But the Court applied the Tinker standard and found no evidence of “any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion.”
The disappointing thing is that the Court seemed to completely disregard the fact that this was an extracurricular activity whereby the student had agreed to follow some stricter rules. The Court’s decision is going to leave coaches and sponsors confused about what rules they can apply.
We can talk about all that in today’s Zoom call, and then I’ll write some more about it next week. Hope to see you at 10!
It’s Mahanoy Area School District v. B.L., decided by the Supreme Court, 8-1, on June 23, 2021.
DAWG BONE: BRANDI LEVY AND MARY BETH TINKER: NOW JOINED FOREVER IN SUPREME COURT LORE.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.