Revisiting students’ First Amendment rights

The U.S. Supreme Court seems ready to revise, if not rewrite, a 56-year-old precedent that frames First Amendment protections for teenagers at school. An opinion is long overdue in light of the dramatic changes in the way teens communicate compared to three generations ago. And even if the court treads lightly, as some believe it will, the case at hand at least should lead to some self-reflection on sidelines and around dinner tables, as it serves up yet another reminder of the dramatic consequences of an impulsive action.

Until now the precedent standing above all others when it comes to the free speech rights of students drew from the anti-war sentiments of some earnest kids in Iowa back in 1965. With about 170,000 U.S. soldiers deployed in Vietnam, they turned up at school in Des Moines wearing black armbands in protest of the Americans and Vietnamese killed in the war, and in support of a Christmas truce being proposed by Sen. Bobby Kennedy.

Their activism earned most of them suspensions — the discipline that would spark a court case eventually leading Supreme Court Justice Abe Fortas to famously write, three and a half years later, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

That precedent now stands to be reframed around an image posted to Snapchat by Brandi Levy, who as a sophomore in the Mahanoy Area School District in eastern Pennsylvania didn’t make the varsity cheerleading squad. That, with her frustration over the way things were going on her club softball team, led Levy and a friend to take a selfie at a convenience store in which they gave a certain universal greeting. Levy captioned it with four uses of a certain four-letter word directed at “school,” “softball,” “cheer” and “everything.”

What she ostensibly shared with 250 Snapchat friends inevitably got back to the cheerleading coaches. The violation of “team and school rules” got her bounced from the squad for a season — discipline that sparked the lawsuit heard by the Supreme Court this past week.

The two cases could not be more different, in terms of the speech itself, and the justices seem cautious about grounding a new precedent in the misfortunes of a cheerleader venting her frustration (and who, it should be noted, eventually made her way back to the squad.) “She’s competitive, she cares, she blew off steam like millions of other kids when they’re disappointed about being cut from the high school team,” observed Justice Brett Kavanaugh, who weighs the case as a jurist, parent and coach of his daughters’ basketball teams.

But Levy’s snap illustrates the complexities of speech in a social media setting and the nuances of restriction that are well known to school officials everywhere. Teenagers constantly engage each other, their communities and, really, the world on social media -- regardless of if they’re standing in a chemistry lab, or at a convenience store or in their bedrooms. They are bounded by social media user agreements, as well as laws and rules that forbid bullying, harassment or threat-making. School officials may act on a post that causes a real disruption in the halls.

Absent that, a teenager like Levy should have every latitude to voice her anger about her coaches or school in general — as well as broader topics, from political protests to the president — no matter how indelicate her words. The U.S. Court of Appeals in Philadelphia said as much in a ruling that schools cannot sanction speech arising off campus — and, incidentally in this case, outside the athletic season.

After two hours of discussion, justices seem included to issue a narrow opinion, court watchers say, perhaps focused on the fact that schools may limit off-campus speech. Certainly, after most teenagers have spent a year and a half in some version of remote or hybrid learning — the justices, themselves, heard this past week’s arguments via teleconference — that much is low-hanging fruit.

More challenging questions are still out there. It’s inevitable, for instance, that a student’s snap or tweet or post or TikTok video will be be far more politically difficult, and will trigger a heavy penalty. Doubtless something already has. At that point, someone will have to settle for sure the thorny debate over just how far into the web schools may reach to control their students.


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