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August 16, 2021

Supreme Court’s call on student free speech draws mixed views

Panelists at the American Bar Association’s 2021 Hybrid Annual Meeting had varying perspectives on the recent U.S. Supreme Court decision in support of public school students’ free expression while off campus.

They were part of the showcase program “Beyond the Schoolhouse Gate: Student Speech Rights After Mahanoy School District v. B.L.,” hosted by the Section of Civil Rights and Social Justice on Aug. 5.

Three of the panelists participated in friend-of-the-court briefs in Mahoney School District v. B.L., in which the Supreme Court ruled 8-1 in favor of high school cheerleader Brandi Levy. The court said the rights of students to express themselves off-campus are protected by the First Amendment, but that public schools may discipline students in a few situations such as bullying, harassment or threats aimed at a person or at the school. The school was found to have violated the First Amendment by punishing Levy for using a vulgar word in a Snapchat post after she learned she didn’t make the cheer team.

Ben Holden, professor at the University of Illinois College of Media, said the court failed to answer the question presented in the briefs. He equated the decision to an object with many parts that needs assembling. “It appears the court has sent school districts and lower courts a big ol’ package with assembly required — and no manual.”

For Francisco Negron, chief legal officer of the National School Boards Association in Alexandria, Virginia, whose organization represents 3,300 school lawyers and more than 94,000 school board members across the county, the ruling was beneficial.

“I think the most important part of this decision is that the court spoke very clearly to say that schools continue to have a role in students’ speech even if that speech happens off campus,” Negron said.

Mary-Rose Papandrea, professor of constitutional law at the University of North Carolina School of Law, didn’t think the decision was as clearly stated as Negron suggested.

“I love looking at areas of the First Amendment that don’t follow the usual rules where the court ends up flailing,” Papandrea said. “I don’t think this is a good decision for anyone to be honest, except for Brandi. I mean she won, but it’s not good for students.”

Papandrea said the decision has left a lot of uncertainty. Although it has given school districts a lot of room to argue that they have the authority, “as far as having certainty that they can restrict speech, there is nothing certain in this opinion and there’s nothing certain in a lot of the court’s other doctrines where it’s grappling with so-called special circumstances.”

Mahoney challenged another high court landmark decision on student free speech, Tinker v. Des Moines Independent School District. In 1969, Mary Beth Tinker wore a black armband to protest the Vietnam War, which led to discipline by the school board and the Supreme Court saying, “students don’t shed their constitutional rights at the schoolhouse gate.”

Tinker, a lead plaintiff in the case and now a retired emergency room nurse who worked in adolescent trauma, appeared on the panel. “Youth rights issues is really an international issue,” she said. “Young people have a say about their lives.” She cautioned about suppressing student speech because “it is an important part of youth development and youth mental health, social health, psychological health and physical health to be able to express yourself and to advocate for your own interest. I’m really glad that Brandi Levy won this case.”

Moderator Stephen Wermiel, professor at American University Washington College, said although there was “lots of disagreement” among panelists, there was one thing that they appeared to be on one accord. “This Supreme Court decision is not going to be the last word on this subject,” he said. “There is likely to be future litigation.”