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Can Schools Police What Students Say on Social Media?

The answer may hinge on a case now before the Supreme Court

An image of a smartphone with a faceless student and frown emojis with expletives over them (#%!&) and a finger about to push post
Dana Amihere

Brandi Levy was a Pennsylvania high school student when she sent a fateful, expletive-filled Snapchat in 2017.

Levy had made her school’s junior varsity cheerleading team freshman year, with hopes to make the full varsity team as a sophomore. But after trying out, she still only made the JV team. Disappointed, she ended up doing what so many teens do: venting on social media. She posted a photo to Snapchat with a friend and declared, “Fuck school fuck softball fuck cheer fuck everything.”

The message was broadcast to Levy’s friends, and soon a screenshot made its way back to the school’s cheer coaches. Levy was suspended from the team for her sophomore year, with the coaches saying Levy had violated the team’s rules against respecting the school and avoiding “foul language and inappropriate gestures.”

Since then, Levy and her family have been waging a legal battle to reinstate Levy, arguing that the Mahanoy Area School District violated her First Amendment rights. 

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That case, on appeal from the U.S. Court of Appeals for the Third Circuit, which affirmed the Pennsylvania U.S. District Court’s ruling in Levy’s favor, has now made its way to the Supreme Court and could provide answers on what have become some knotty questions for students and for schools in the digital age. Specifically, how far does a school’s power to discipline reach, and what, exactly, are students’ rights?

“Schools should not be powerless to confront incoming speech tied to the school that will inevitably disrupt the school environment, just as schools need not turn a blind eye to the same speech on campus,” the school district said in its request for the Supreme Court to hear the case.

A decision in the case, Mahanoy Area School District v. B.L., is expected in the next few weeks. 

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What Does the Law Say About Student Speech Right Now?

Answering that means taking a step back to 1965, when a group of Des Moines students were disciplined for wearing black armbands to protest the Vietnam War. The students filed a First Amendment suit and, after taking the case to the Supreme Court, eventually won. The court ruled in the case, Tinker v. Des Moines Independent Community School District, that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Still, while students have a right to express their options, there are limits to that right. If a student’s speech causes “substantial disruption” to the school environment, the court said, the school is within its rights to discipline that student. If a student is harassing or threatening other students, for example, that likely steps over the line. 

But does that power extend to speech that happens off-campus? And in the social media age, what does that even mean? That’s the focus of Mahanoy.

I think the boundaries have been unclear for a long time.

Sara Rose, ACLU of Pennsylvania

Schools, without a definitive answer, have often forged their own paths. In two similar cases from the mid-2000s, Pennsylvania students were punished by their schools for making parodic MySpace profiles of their principals. After years of back and forth, appeals courts eventually found that the schools overstepped, but the Supreme Court denied requests to hear these cases. 

The issue extends to higher education, too. In one high-profile example from this year, the University of Oregon changed its disciplinary policy to explicitly include off-campus actions after photos of parties during the pandemic were posted to social media, raising concerns that the policy unconstitutionally stepped into students’ private lives. And one University of Tennessee student sued this year after being punished for risqué social media posts. 

“I think the boundaries have been unclear for a long time,” said Sara Rose, an attorney with the American Civil Liberties Union of Pennsylvania, who’s representing Levy in the case. (The legal team representing the school district didn’t respond to a request for comment.)

So far the courts have sided with Levy, saying the school overstepped its authority by punishing her. But the new boundaries on student speech set by the court could have implications for students around the country—particularly for what they say online. 

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What Are the Arguments?

Levy’s school district has argued that it needs the power to regulate off-campus speech, since something that happens off-campus can quickly have repercussions for education on campus.  

The Biden administration, for one, has agreed with the school district. In a brief filed with the court, Justice Department attorneys argue that it would be dangerous to put the power to punish students for off-campus behavior out of schools’ reach.

“Off-campus speech—including speech communicated via email, text message, social media, and the like—that is harassing or bullying can contribute to depriving victims of the educational opportunities to which they are entitled,” the administration said in its brief.

Others aren’t so sure. A group of civil rights groups argued in a brief filed with the court that allowing schools to regulate off-campus speech “would chill students from engaging in valuable, constitutionally protected expression, both online and offline.” 

[Schools] increasingly are forced to serve as the never-off-duty speech police of their students.

Amicus Brief to Mahanoy filed by nine states

Another brief, filed by nine states, worried that schools “increasingly are forced to serve as the never-off-duty speech police of their students.” Regulating speech on-campus and on social media, they argue, would be simply too much to monitor. 

Still others have argued that there need to be at least some situations where schools can regulate off-campus and online speech. Several anti-bullying organizations argued to the court, for example, that schools need to be able to stop harassment, even if it happens online.

The question isn’t just academic. In some instances, groups of dozens of students have been disciplined for what they’ve done on social media, as when 20 Oregon high school students were suspended for retweeting a tweet suggesting a staff member flirted with students. The Supreme Court’s decision will decide whether those sorts of disciplinary actions are constitutional.

Rose, however, said there are already limits on speech for everyone, whether they’re students or adults. Schools can still police threats on or outside of campus—so long as they’re serious and ongoing—under current law, she said, without a special rule giving them uncurbed power over everything students say.

“These are First Amendment principles that apply to everyone and don’t just single out students,” she said.

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What Could a Ruling Mean for How Students Use Social Media?

Unavoidably, that’s one of the key questions the Supreme Court is now deciding. 

Using social media, the school district said in its request to the Supreme Court to hear the case, students can “speak instantaneously to an audience of the whole school” and schools might not know how to enforce rules surrounding that speech. 

The pandemic has made the issue even more urgent. “Technology allows students of all ages to connect with each other in virtual classrooms,” the district told the court. “But that same technology acts as a megaphone for off-campus speech, ensuring that it reverberates throughout the classroom and commands the school’s attention.” 

Reuters reported that when the Supreme Court heard arguments in the case in April, the justices seemed sympathetic to Levy’s case but worried about how to set boundaries in the internet age.

“That sharp line I think you’re trying to draw between on campus and off campus, how does that fit with modern technology?” Chief Justice John Roberts asked, pondering what it would mean if a message from a park was read in the cafeteria. 

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 “I don’t know how you locate the conduct in school versus out of school when you have social media,” Justice Clarence Thomas said.

Whichever side the court comes down on, how broadly or narrowly it tailors its ruling could shake up school discipline practices around the country. 

Rose said that some lines still have to be drawn. She suggested that an incident that happens in a Zoom classroom, for instance, would be within the school’s power to punish, but said that putting all off-campus speech, including social media, under school scrutiny would seriously damage students’ speech rights.

“They’re going to have to really self-censor if the court were to adopt the school district’s position because basically anything they say, no matter when or where they say it, could subject them to punishment if other people object to it,” Rose said.

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