Today’s “speech” isn’t your father’s speech. Oh, no. The concept of “speech” evolves with the times. Brandi’s “speech” which got her into trouble was a Snapchat post containing a certain four letter word beginning with the letter “f.” She used this word not once, not twice, but FOUR times. To visually illustrate her speech, Brandi’s post included a picture of her and a friend raising their middle fingers. Get her message loud and clear?
What was Brandi so upset about? The 14 year old was frustrated (to put it mildly) that, as a rising sophomore, she did not make the varsity cheerleading squad but would have to remain on the JV squad for another school year. Egad! What’s a troubled teen to do? Vent on social media.
And vent Brandi did. Her eloquent post read, “F— school, f— softball, f— cheer, f— everything.” Although undeniably related to school (hey, the post expressly used the word “school”), the “speech” did not occur at school or even on a school day. Brandi was at a local convenience store on a Saturday, and she wasn’t wearing school clothing (such as a cheerleading outfit.) The post was transmitted on Snapchatto 250 of her closest friends, some of whom were classmates and fellow cheerleaders; it would automatically self-destruct in 24 hours–plenty of time to be wiped away before the school bell rang Monday morning.
But the best laid plans of men, and of teenage cheerleaders, often go awry. A Snapchat friend saw Brandi’s post and screenshotted it. She then shared the picture with another high school student who was the daughter of one of the cheerleading coaches. (The plot thickens!) Needless to say, the coach was less than pleased with this “speech.” Other members of the cheerleading team also raised complaints. As a result, Brandi was kicked off the cheerleading team for the school year for violating school and team rules requiring students to avoid “foul language and inappropriate gestures.” The school’s athletic director, the principal, the school superintendent, and the school board all sided with the coaches.
Brandi’s parents, who were previously unaware of their daughter’s Snapchat antics, did not take her suspension lying down. They did what any normal American parent would do–they filed a lawsuit. The case, brought in the U.S. District Court for the Middle District of Pennsylvania in September 2017, alleged the school had violated Brandi’s First Amendment rights by restricting her off-campus speech. And the district court judge agreed, resulting in Brandi being reinstated on the cheerleading team. Rah! Rah! Rah!
Undaunted, the Mahanoy Area School District appealed the lower court’s decision to the Third Circuit Court of Appeals. Once again, a ruling was entered that the school district had violated Brandi’s First Amendment rights; the school district failed its test in challenging the lower court ruling. The June 2020 appellate court decision held schools “cannot censor students’ off campus speech based on a fear of disruption of school activities.”
Did the school district concede and go back to concentrating on providing a quality education for its student population? Nope. It appealed to the highest court in the land, the United States Supreme Court. The Supremes were going to be hearing only the fifth students’ speech case in its history, and the first one it had heard in over 50 years.
Oral arguments were heard presented to the Supreme Court on April 28, 2021. But the wheels of justice grind slowly, so it will be months before an opinion is issued. Meanwhile, time marches on. Brandi, a 14 year old high school sophomore when this story began, is now an 18 year old college freshman.
The disposition of Brandi’s case turns on the interpretation of a Vietnam era Supreme Court decision issued in 1969, Tinker v. Des Moines Independent Community School District. Oh, the memories this case name evokes of me studying constitutional law in law school! But I digress. In Tinker two siblings wore black armbands to school to protest the ongoing war. The high court sided with the Tinkers holding students don’t shed “their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Clearly, the high court did not buy the contention students should be seen at school but not heard as to their personal opinions.
While the Tinker court ruled in favor of the protesting students, it did recognize the authority of the schools to regulate speech that would “materially and substantially interfere with the requirements of appropriate school discipline in the operation of the school.” Because of the special characteristics of the school environment, a distinction was made between speech at school and speech off campus. The Tinkers wore their armbands to school, so their speech was undeniably an on campus event. But Brandi’s speech occurred on a weekend at a 24 hour convenience store. Those facts were compelling to both the district court and the appellate court below who ruled in Brandi’s favor. School districts and 50 million public school students are waiting with bated breath to see if the Supremes agree.
The Mahanoy School District’s counsel argued the off-campus location of Brandi’s speech was not dispositive. With remote learning due to COVID, a brick and mortar school isn’t the only “campus” where learning is occurring. OK, but it was Saturday and Brandi was at a convenience store not in front of her computer doing a history lesson, just sayin’.
Counter arguments to the school district’s position involved a common sense proposition. While schools have the power to regulate students they are supervising, that power ceases when they aren’t supervising a student. Brandi’s Snapchat “speech” was made outside school hours in a non-school (and even non-home) environment. Shouldn’t the parents be regulating student behavior and speech during non-school time and in non-school locations?
I’m not a Supreme Court Justice, but I am a member of the U.S. Supreme Court Bar and have been in the impressive courtroom where the Justices sit in the high backed chairs before red velvet curtains to hear oral arguments and announce their decisions. What would I rule? Drum roll, please. It’s Brandi for the win!
Why would I rule this way? First, the speech occurred in an off-campus location during non-school hours. There is no connection between Brandi and the school at that point other than she is a student who attends that school. Second, the power to regulate students is utilized to prevent “material and substantial disruption” to school. What such disruption occurred? Students say ugly, profane, unkind, impertinent things about teachers, coaches, and each other all the time. If every statement like that merited suspension, I dare say there’d be no students left in the classroom. Third, where does a school district’s authority stop? Are they big brother watching and listening to a student’s words no matter what the location? Fourth, it’s a parent’s job to supervise students during non-school time off-campus not the school’s. Fifth, I give you the First Amendment. Free speech means, well, free speech. The whole point of having the amendment is that what we say will often be unpopular and not well received. (Like “Down with King George!”) We wouldn’t need speech protection if everything said were words all enjoyed hearing.
Although I’d rule in Brandi’s favor, I by no means condone the speech she made. It was impolite, rude, and disrespectful. Bottom line? Brandi had the legal right to say what she did, but just because she could do it does not mean that she should have. Anyone have a bar of soap handy? Uh oh, that may lead to a case about “cruel and unusual punishment.
If you were a Supreme Court justice, how would you rule? Everything has a limit. Where do you draw that line for free speech? For the school’s power to regulate its students?