Clare R. Norins is director of the University of Georgia Law School’s First Amendment Clinic and a board member of the Georgia First Amendment Foundation.
In this guest column, Norins discusses the ramifications of the U.S. Supreme Court’s ruling in a free speech case involving a high school cheerleader. While the ruling last week was a victory for the cheerleader, Norins explains today why it wasn’t a clear win for protecting student speech outside of school on social media.
By Clare R. Norins
On June 23, 2021, the Supreme Court issued an 8-to-1 decision in Mahanoy v. B.L., ruling for the first time on whether public schools can constitutionally regulate off-campus student speech.
The court held that Pennsylvania high school student Brandi Levy was unconstitutionally disciplined by her school after she posted a profanity-laced Snapchat rant when she failed to make the varsity cheer squad, proclaiming “(expletive) school, (expletive) softball, (expletive) cheer, (expletive) everything.”
Despite granting Levy a historic First Amendment victory, the court found a “school’s regulatory interests remain significant in some off-campus circumstances” and rejected the idea that schools can never impose consequences for off-campus student speech. This decision leaves students and their parents in limbo as to when, exactly, schools can reach into their homes, their personal social media, or their recreational and leisure time to punish young people for their off-premises expression.
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This uncertainty is chilling for young people who, particularly in middle and high school, are experimenting and evolving in their ability to express themselves. They need the space to do this on their own time – so long as it is lawful -- without facing retribution from their schools. But in Mahanoy the justices declined to offer any clear line-drawing about what constitutes “off-campus” or what types of off-campus speech might still come within the school’s reach, offering instead only the following vague guidance for schools to bear in mind:
Schools bear a “heavy burden" to justify interference with purely political or religious off-campus speech.
Schools have a duty to protect students' right to express unpopular or disfavored viewpoints.
Parents usually have more authority than schools to regulate young people's off-campus expression.
These three principles leave an ocean of gray area and will not prevent schools from wrongly punishing off-campus student speech, in turn chilling a great deal of protected expression. Consider the following real-world examples:
In Georgia, a Troup County student was expelled for “gang-related” conduct after he posted his rap video on YouTube that was paid for and filmed in the presence of his mother on a weekend. The school took issue with some of the hand gestures displayed in the video and the fact that the student was holding what appeared to be a hand gun. Mahanoy provides no clear answer as to whether the school over-reached other than to suggest that the mother’s condonement of her son’s artistic expression should have carried significant weight.
Also in Georgia, a North Paulding High School student was suspended for posting on her own Twitter account, after school hours, images captured on her personal cell phone of crowded school hallways during the COVID-19 pandemic that the superintendent described as “criticizing our reopening efforts.” Would this be considered “off-campus” speech since the images posted were taken at school? Does critique of a school’s response to a public health crisis qualify as “political” speech? These questions are all still uncertain after Mahanoy.
There are many more such examples with no definite resolution after the court’s decision. A Michigan high school senior was suspended for posting on social media a picture of dirty, yellow-ish tap water running from a school bathroom sink.
A Latinx student in Massachusetts was suspended for “posting on his Facebook page that racists should not be teaching Spanish,” even though he did not name his school or identify any specific teachers.
Texas high school students who posted on social media pictures of themselves at school wearing all black on “dress American” theme day to show their support for Black Lives Matter, with other students in the background dressed in shirts spelling out “T-R-U-M-P,” were threatened by administrators with suspension unless they deleted the post. They complied.
In some of the foregoing scenarios, school authorities eventually rescinded students’ punishments or took conciliatory measures after the situation received national media coverage. In others, the students sued their schools. But it requires time, energy, and resources to stand up against improper school discipline. For every case where a students’ off-campus free speech rights are eventually vindicated, there are many others where students suffer unconstitutional punishment or refrain from expressing themselves in the first place (i.e., self-censors).
This is not healthy for young people’s intellectual and emotional development or for our ideals of a society in which self-expression is cherished and parents retain core responsibility for their children’s conduct outside of school.
Schools, students and parents need clear guidance or else the battle for off-campus student speech rights will continue to be unpredictable, with widely varying results.
We should therefore celebrate that Mahanoy affirmed Brandi Levy’s right to profane free expression, but also recognize that the larger fight for student free speech is far from won.
The author of this piece, Clare R. Norins, is director of the University of Georgia Law School’s First Amendment Clinic.
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