Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

THE THREE R’S AND THE F-BOMB

In 2017, fourteen-year-old junior varsity cheerleader Brandi Levy failed to win a promotion to the varsity squad at her Pennsylvania public high school. After leaving campus, Brandi expressed her frustration via Snapchat: She and a friend extended their middle fingers and posted, “F**k school f**k softball f**k cheer f**k everything.”

From such vulgarities do First Amendment precedents spring. Because even schoolkids have constitutional rights. The Supreme Court has repeatedly said so, notably in 1969, when it ruled that a thirteen-yearold girl, Mary Beth Tinker, had the right to protest the Vietnam War by wearing a black arm band to her public school. The Court famously proclaimed: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.1 The Court condemned school administrators who simply wanted to control student speech of which they disapproved: In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.2 As to what constitutes “constitutionally valid reasons to regulate” student speech, the Tinker court adopted a standard from an earlier case involving civil rights protests: In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.3 The Court then determined that merely wearing a black armband did not “materially and substantially interfere” with school operations.

Alas, Tinker was the last major victory for student speech in the past half-century. As the Warren Court became the Burger Court, and then the Rehnquist Court, and, now, the solidly-conservative Roberts Court, student speech lost out again and again. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court decided that school newspapers did not enjoy the same First Amendment protections as other newspapers, and that, therefore, a school administrator could prohibit publication of articles concerning divorce and teen pregnancy, even though those articles had been approved by the paper’s faculty advisor. The Court said that the administrator need only cite “legitimate pedagogical concerns” 4 for such censorship—a far cry from the Tinker standard.

Subsequent Supreme Court cases further empowered school officials at the expense of student speech. Among the more controversial decisions was Morse v. Frederick, 551 U.S. 393 (2007), in which a public school disciplined a student for off-campus speech. A public high school in Alaska allowed students to leave the school to witness the passing of the 2002 Olympic Torch. Student Joseph Frederick took this opportunity to unfurl a banner reading, “BONG HiTS 4 JESUS.” Principal Donna Morse ran across the street and seized the sign. Although Frederick insisted that the message was nonsense, school officials considered it an endorsement of drug use and suspended him.

The Court held for the school district. Finding neither Tinker nor Hazelwood controlling, the Court announced the greatest curtailment of student speech rights to date: When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.5 In other words, the Court endorsed the most severe type of governmental censorship: viewpoint discrimination. And it did so with regard to speech that occurred off campus.

Which brings us to 2021, cheerleaders, and Snapchat. On June 23, the Supreme Court issued its opinion in Mahanoy Area School District v. B.L., 6 in which, for the first time, it squarely considered the power of a school district to regulate student speech that takes place off campus.

After Brandi Levy dropped her f-bombs, school officials suspended her from the junior varsity cheer squad. But the Supreme Court held that Levy’s off-campus speech did not substantially interfere with school discipline and was protected by the First Amendment. While declining to adopt a categorical prohibition on school regulation of off-campus speech, the Court expressed skepticism about allowing school officials to regulate what students say twenty-four-hours a day. It also noted that offcampus discipline was generally something best left to parents.

One prediction: Just as Morse will always be known as “the BONG Hits 4 JESUS case,” Mahanoy will long be remembered not merely for its protection of student speech, but for the multiple f-bombs that prompted that protection.

1 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). 2 Id. at 511. 3 Id. at 738, citing Burnside v. Byers, 363 F.2d 744, 749 (5th Cir. 1966). 4 Hazelwood, 484 U.S. at 273. 5 Morse v. Frederick, 551 U.S. 393, 409-10 (2007). 6 Slip opinion available at: https://www.supremecourt.gov/opinions/20pdf/20-255_ g3bi.pdf.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.