B.L. (Brandi Levy) took to the photo-sharing app Snapchat to express her anger of not making the varsity high school cheerleading squad for the 2017-18 school year at Mahanoy Area School District in Mahanoy City, Pennsylvania.
While at a local store with a friend, she posted a photo of her and a friend holding up their middle fingers with the text “f(***) school, f(***) softball, f(***) cheer, f(***) everything” superimposed on the image.
Levy took the Snap at a local convenience store on a weekend when she was not participating in any school activity. The Snap did not specifically mention or picture the high school. Further, the Snap was only shared with Plaintiff’s friends on SnapChat (a social media platform), and thus was not available to the general public.
Now, we all know that B.L. was being a selfish, disrespectful little brat. She was kicked off the junior varsity cheerleading squad for her actions that school officials believed were “negative,” “disrespectful,” and “demeaning.” Committing just the kind of dumb mistake many of us made during our high school matriculation, B.L. was dutifully punished. Or was she?
Enter her First Amendment rights.
B.L.'s parents, Lawrence and Betty Lou Levy, sued the school after B.L’s coaches saw the post and the school decided it would be best to suspend her from the team.
Courts have long recognized that administrators may punish students for some forms of expression on campus or at school activities – like vulgar language – that would be protected under the First Amendment if it took place outside of K-12 schools.
These days, however, the line between on- and off-campus speech isn’t that clear. That’s mostly because of how students use social media and mobile platforms to share their opinions, spread news, and – too often – bully their classmates.
Prior Law
The U.S. Supreme Court in the seminal case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) held that “to justify prohibition of a particular expression of opinion,” school officials must demonstrate that “the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker sets the general rule for regulating school speech, and that rule is subject to several narrow exceptions.
One exception is set out in Bethel School District v. Fraser, 478 U.S. 675 (1986), which permits school officials to regulate “‘lewd,’ ‘vulgar,’ ‘indecent,’ and ‘plainly offensive’ speech in school.” The exception set forth in Fraser is limited to profane on-campus speech and does not apply to off-campus speech.
(Chris Voltz. “The Ability of a School To Punish Lewd Or Profane Speech Disappears Once A Student Exits School Grounds. Tuckerlaw.com. June 04, 2018.)
The District did not allege that it had punished the Brandi Levy because Plaintiff’s Snap materially and substantially interfered with the operation of the school.
The court held that the Levy case was controlled by J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, 932 (3d Cir. 2011), where a student created a fake online profile of her principal that accused the principal of having sex in his office, hitting on students and being a “sex addict.” Additionally, the student in Blue Mountain specifically named and personally attacked members of the school’s staff and their families. The Third Circuit held that the speech was protected because it originated outside of the control of the school district.
Like the plaintiff in Blue Mountain, the Plaintiff in Levy created content that was distributed through use of the internet during the weekend on a device that was not owned or controlled by the District. Additionally, the Plaintiff was not on school property when the speech was generated. Therefore, the court held that if the explicit speech in Blue Mountain was protected, the generic statement in this case was protected as well.
(Chris Voltz. “The Ability of a School To Punish Lewd Or Profane Speech Disappears Once A Student Exits School Grounds. Tuckerlaw.com. June 04, 2018.)
The heart of the School District's arguments was that it has a duty to “inculcate the habits and manners of civility” in its students. Before she could try out, B.L. was required to agree to a number of rules that would apply to her if she made the squad again.
B.L. and her mother reviewed the school's rules prior to tryouts, and signed a document acknowledging B.L. would be bound by them. Unfortunately for B.L., tryouts did not go so well – she was placed on the junior varsity squad again for her sophomore year. And, to add insult to injury, an incoming freshman made the varsity squad.
(“B.L. v. Mahanoy Area Sch. Dist.” Casetext: Smarter Legal Research. March 21, 2019.)
The School District's last recourse was the “Personal Conduct Rule” in MAHS's student handbook. It provides:
“Participation on an athletic team or cheerleading squad in the Mahanoy Area School District is a privilege and the participants must earn the right to represent Mahanoy Schools by conducting themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.
“Any participant whose conduct is judged to reflect a discredit upon himself/herself, the team, or the Mahanoy Schools, whether or not such activity takes place during or outside school hours during the sports season, will be subject to disciplinary action as determined by the coach, the athletic director and/or the school principal.”
(“B.L., a minor, BY AND THROUGH her father Lawrence LEVY and her mother Betty Lou Levy v. MAHANOY AREA SCHOOL DISTRICT, Appellant.” Thomson Reuters Practical Law.)
Decision of the U.S. Circuit Judge
“B.L., a minor, BY AND THROUGH her father Lawrence LEVY and her mother Betty Lou Levy v. MAHANOY AREA SCHOOL DISTRICT, Appellant” was argued November 12, 2019 in the United States Court of Appeals, Third Circuit.
The court concluded, to be sure, B.L.’s snap was crude, rude, and juvenile, just as they might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. This rule does not lend itself to a finding of waiver for two reasons.
First, it applies only “during the sports season,” but B.L. posted her snap after the previous season had ended and before practices for the next season had begun.
Second, the rule's language gives few clear markers, applying wherever a student's behavior would “tarnish” the school's “image” in “any manner.” That language is too obscure, and too dependent on the whims of school officials, to give rise to a knowing and voluntary waiver of B.L.’s rights to speak as she did.
“We therefore hold that B.L.’s snap was not covered by any of the rules on which the School District relies and reject its contention that B.L. waived her First Amendment rights.”
Writing for the three-judge panel, U.S. Circuit Judge Cheryl Ann Krause found B.L.’s speech is protected specifically because she made the snap off-campus.
“B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school,” said Krause in the 44-page-opinion.
The school had argued B.L. waived her free speech rights by agreeing to the cheerleading squad’s “Respect Rule,” but Krause disagreed. She wrote …
“That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large.”
U.S. Circuit Judge Thomas Ambro concurred with the judgment but dissented with the court’s holding that Tinker v. Des Moines Independent School District, a case where students were suspended for wearing black armbands in protest of the Vietnam War, does not apply to off-campus speech.
Ambro worried the narrow holding of the majority leaves the door open for schools to regulate on-campus speech.
“The bottom line is that circuit courts facing harder and closer calls have stayed their hand and declined to rule categorically that Tinker does not apply to off-campus speech. Yet we do so here in a case bereft of substantial disruptions within the school. I fear that our decision will sow further confusion,” said Ambro.
(Emilee Larkin. “Snapchatting Cheerleader Wins Free-Speech Case at 3rd Circuit.” courthousenews.com. June 30, 2020.)
Still, Ambro agreed B.L.’s case was clear-cut.
“The case before us is straightforward — B.L.’s Snap is not close to the line of student speech that schools may regulate,” said Ambro.
American Civil Liberties Union attorney Sara Rose, representing B.L., applauded the decision.
“Our client was out of school, on her own time, and not involved in a school activity when she made the Snapchat post, and the school went well beyond its power in disciplining her for her speech,” Rose said in a statement. “We are grateful that the court understood that the same free speech principles apply whether a student is kicked off the cheerleading team or suspended from school for expression that occurs off-campus.”
(Emilee Larkin. “Snapchatting Cheerleader Wins Free-Speech Case at 3rd Circuit.” courthousenews.com. June 30, 2020.)
Frank LeMonte, director of the Brechner Center for Freedom of Information at the University of Florida, has been following this case closely and says it’s an important one for students rights.
LeMonte pointed out that it would be “inconceivable” if we allowed any other government agency to punish people for expressing their dissatisfaction.
“If you write a blog post profanely criticizing the inefficiency of the DMV, they don’t come to your house and take your driver’s license away,” said LeMonte.
(Emilee Larkin. “Snap-Chatting Cheerleader Defends Speech Rights at 3rd Circuit.” courthousenews.com. November 12, 2019.)
What Next?
Despite the court's judgment, this ruling undoubtedly sticks in one's craw of many school administrators, teachers, and even parents. Not only is school bullying a legitimate concern on social media, but volatile campus unrest can be endorsed by irresponsible online actions.
This is not to say that students' freedoms should be curtailed for profanity but that hate speech – attacks or uses of pejorative or discriminatory language with reference to a person or a group on the basis of who they are – is a serious threat to all parties in schools.
Rights must be protected. The Levy decision is a triumph for the free speech of students everywhere. But still … that gray area trying to maintain civility with privilege is full of landmines that threaten ethical education. And, schools deal with ethics on a daily basis – these ethics are interpreted as the discipline of dealing with good and bad, with commitment and moral duty. Ethical decisions are often very difficult to make but remain of utmost importance.
B.L. behaved very badly. With the absence of parental guidance, many students today lack moral understandings and abuse their privileges both because of ignorance and because of unwarranted, emotional defiance. Educators and lawmakers know the challenges involved. Although freedom is guaranteed, institutions continue to struggle with teaching common respect.
“In teaching, as in life more generally, core principles relating to virtues such as honesty, justice, fairness, care, empathy, integrity, courage, respect and responsibility should guide conduct and interpersonal relations.”
– Elizabeth Campbell, Ethical Knowledge in Teaching: A Moral Imperative of Professionalism (2006)
The case is being reviewed and may eventually end up in the Supreme Court. The national discussion it has created will surely follow any further consideration. The intelligence and wisdom required to make proper judgments of such cases is a charge … not only the duty of the courts but also an imposition to all of us.
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