Future Tense

The Supreme Court’s Cheerleader Decision Has Something to Frustrate and Disappoint Everyone

The Supreme Court building against a blue sky with small, wispy clouds.
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In the 1892 Sherlock Holmes tale “The Adventure of Silver Blaze,” Arthur Conan Doyle introduces the pivotal plot point of the dog that didn’t bark—something that’s meaningful because it doesn’t happen.

For the 65 million Americans attending public educational institutions, clicking “open” on Wednesday’s Supreme Court opinion in Mahanoy Area School District v. B.L. was like stepping into a kennel of Dobermans with a pocketful of rib-eyes—and not hearing so much as a yip.

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In the case of a 14-year-old Pennsylvania cheerleader, suspended from the squad over a profane (“Fuck cheer”) vent shared to her Snapchat account on a weekend stop at a convenience store, the justices could have empowered schools to freely punish disagreeable social media speech that provokes a reaction at school.

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But they didn’t decide that. Indeed, the court’s 8–1 opinion—written by Justice Stephen Breyer and joined by everyone except habitual student-rights curmudgeon Justice Clarence Thomas—decided remarkably little, except that Brandi Levy shouldn’t have been punished.

The court didn’t decide that the ubiquity of social media and smartphones requires discarding decades-old First Amendment principles that protect students’ right to speak freely without punishment.

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The court didn’t decide that the scourge of online bullying justifies putting off-campus online speech on equal footing with on-campus speech for purposes of school regulatory authority.

The court didn’t decide that signing up for an extracurricular team activity means waiving the constitutional protections that would otherwise constrain school disciplinarians.

The court didn’t decide that schools are free to strip students of discretionary privileges, like participating in team sports, to punish speech critical of school authority figures.

The court did not fall all over itself genuflecting to the supposedly superior expertise of school administrators to make disciplinary decisions without judicial second-guessing.

Lawyers for the nation’s public schools, and allies including the Biden Justice Department, invited the justices to do all of these things—any of which would have made school even more disempowering and unsafe for whistleblowers than it already is today.

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There was every reason to dread that the court would use Levy’s case as a vehicle to continue, and accelerate, decades’ worth of retrenchment on student rights. To the school lawyers and lobbyists who have long sought to rid public education of pesky constitutional constraints, the stage seemed ideally set: The speech was low-value, a string of curse words and an upraised middle finger. The punishment was mild, a year off from cheering. The justices had refused case after case brought by students appealing school discipline, only to finally accept Levy’s case—in which the student actually won—seemingly telegraphing their intent to overturn it.

The Supreme Court does not take cases like Mahanoy Area School District v. B.L. to decide whether one school errantly disciplined one teenager. It takes cases to make enduring, broad statements of principle—legal rules, tests, and standards—that can guide future courts in similar cases and enable the rest of us to predict whether our behavior will be grounds for arrest, firing, or a year off from JV cheerleading. That’s what the court did 52 years ago with Tinker v. Des Moines Independent Community School District, the case of Iowa teens wrongfully suspended for their antiwar armbands, in which the justices instructed future courts: Disciplining kids for speech is unconstitutional, unless their speech “substantially” disrupts school functions.

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As school speech disputes relocated from Mary Beth Tinker’s upper arm to social media, courts grabbed for their First Amendment toolkit and found it empty—except for the Tinker precedent. Most have simply adapted Tinker in refereeing school disciplinary disputes, as if there were no legal difference between speaking inside a classroom and speaking at home on a Saturday. A federal appeals court in New York, for instance, decided it was permissible to discipline a high school activist for an off-campus blog post referring to central-office administrators as “douchebags,” just as if she’d shouted it through the hallways.

The Levy case was different: A federal appeals court ruled, 2­–1, that schools must show something more than just their forecast of a disruption before they can reach into a student’s off-campus life and regulate an unthreatening rant. And that is the question justices considered—and evaded—in Mahanoy.

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Watching Breyer one hand/other hand his way through First Amendment cases resembles nothing more than watching a highly experienced drunk staggering home from the neighborhood tavern. He weaves, he wobbles, at times it’s certain he has no idea where he is headed. But darned if the son of a gun doesn’t end up, unsteadily, sticking his key in the right door almost every time.

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With the 2018 retirement of Justice Anthony Kennedy, the court’s poet laureate of rambling equivocation, Breyer acceded to the mantle uncontested. If this is Breyer’s finale after 27 years on the court (as some predict and perhaps even hope), it was—for better and worse—a bravura of Breyerism: something to frustrate and disappoint everyone.

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Here is what we know to a certainty after Wednesday: It’s OK to flip off your school on Snapchat. And here is what we do not know to a certainty: everything else.

At one extreme, it is apparent that this court is prepared to continue the relaxation of strict jurisdictional boundaries that began with its last foray into schools, 2007’s Morse v. Frederick. In that case, a student’s stoner-joke banner (“Bong Hits 4 Jesus”) at a rally across the street from the school was treated as “school speech,” because the rally was closely associated with the school. Breyer’s Mahanoy opinion specified some scenarios—using a school laptop, logging into a school email account—that will henceforth be considered “in-school” speech, even if the student is stopping at the gas station for coffee at the time.

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At the other extreme, it also seems clear that the court will resolutely protect its favorite two categories of expression—political and religious speech—regardless of how upset it makes people at school. As Breyer wrote, “schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of

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what you say, but I will defend to the death your right to say it.’ ”

The great cavernous hole between these two extremes, the court freely acknowledged, remains to be filled in future cases. As Breyer wrote, “we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech.” Breyer is well-known—or infamous, if you are a First Amendment lawyer in search of bright-line legal guidance—for treating every free speech question as a case-by-case “balancing of interests” exercise. That is where his opinion leaves us: Not with an intelligible legal standard, but with a list of “features” that might justify departing from the usual First Amendment proscription against punishing people for what they say. Courts, he advised, should be “more skeptical” of attempts to regulate truly off-campus speech, out of regard for parents’ child-rearing autonomy.

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But “more skeptical” is hardly the clarity that lawyers on all sides—those for students or for schools—had hoped for. For an attorney advising a speaker whether she may safely launch an online petition drive or give a whistleblowing interview to her local television station, it provides little assurance to say, “It’s a case-specific balancing decision, but you’ll get the benefit of greater skepticism—so, good luck.” Without knowing where the line of school punitive authority is drawn, speakers will censor themselves.

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Most glaringly, the justices left unanswered the pivotal question that will arise in the far more commonly litigated scenario of online speech that is insulting to other students or hyperbolically refers to violence: Can the school impose punishment based on a Tinker forecast of “disruption,” or (as many scholars, and some judges, have suggested) must the school surmount a more demanding burden?

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To be fair to Breyer, judges cannot sculpt masterpieces from mud pies. Thanks to the court’s famously camera-averse rules, we will never see the justices’ souring faces as it dawned on them that the case they’d accepted was not the hoped-for classic to stand as a bookend beside Tinker. To the contrary, Mahanoy was uniquely ill-suited to be the generational “statement case” from which to derive a Tinker-esque principle for every future online speech dispute, for this reason: It did not matter what legal standard the justices applied, because punishing someone for cursing about the school during her off hours could never be constitutional under any standard. No matter how low the court set the First Amendment bar, Mahanoy Area High School could not clear it. That the school district’s appeal would produce a punt and not a touchdown became apparent when Justice Samuel Alito mused aloud during the April 28 oral argument that “if the court, having decided to take this case, wants to decide it without addressing those broad issues, the court could dismiss the case”—a we-goofed admission that almost never happens.

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While an 8–1 score should feel like a landslide, the forecast for student rights remains “partly cloudy,” for this reason: Six justices said implicitly—and two (Alito, in a separate opinion joined by Justice Neil Gorsuch) said explicitly—that the reason students’ First Amendment rights diminish when they are in school is that parents have delegated some of their supervisory authority to educators. As law professor Justin Driver explains presciently in his analysis for the New York Times, Breyer and Alito’s reliance on a legal anachronism—that schools act “in loco parentis” when they supervise students—threatens to resurrect the long-discredited canard that minors do not “own” their constitutional rights but are simply “borrowing” them from their parents.

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What is foreboding for K–12 students, however, is liberating for college students. If it is true that educational institutions have heightened disciplinary authority over students’ speech only because parents “loan” them their own authority, then the court has just strongly signaled how a Levy-type challenge will come out if the speaker is a legal adult.

If the Mahanoy decision is a yellow tap-the-brakes signal for school disciplinarians, it is a bright-red slam-the-brakes light for colleges. A decade’s worth of lower court rulings giving state universities broad authority to punish students for quote-unquote “unprofessional” speech on social media is now almost certainly bad legal precedent. For instance, although the justices declined to take his appeal, the case of a 26-year-old New Mexico college medical student who was disciplined for a profane anti-abortion rant on his personal Facebook page cannot plausibly fit within any of the “Breyer features” and, in future cases, assuredly would come out in the student’s favor. That is a welcome signal for the nation’s 14.5 million public college and university attendees—including Pennsylvania college sophomore Brandi Levy, who is today just a little bit freer to say what all of us have spent the last 15 months thinking: “Fuck everything.”

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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