An upcoming United States Supreme Court decision arguably has the possibility of invalidating sections of the Dignity for All Students Act’s cyberbullying preventions. These are meant to target and prevent off-campus bullying and harassment, including instances that involve verbal or non-verbal actions.
In 2017, after being relegated to the JV cheerleading team for a second consecutive year, Brandi Levy, a rising high school sophomore, had sent two Snapchats to 250 of her friends displaying her dismay toward her coach’s decision. In her first photo, she and a friend were seen raising their middle fingers and wrote, “fuck school fuck softball fuck cheer fuck everything.” Afterward, she followed up with “Love how me and [another student] get told we need a year of JV before we make varsity but that doesn’t matter to anyone else?” She was subsequently suspended from the team for sending these.
These messages were sent on a weekend and occurred off of her school’s campus, yet Levy was nevertheless removed from the cheerleading team for her behavior per the Mahanoy Area High School’s Cheerleading Rules which state that ‘“[t]here will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”’ After appealing her removal to the athletic director, school principal, district superintendent and school board, Levy’s punishment was upheld and consequently, she sued the Mahanoy Area School District.
The case has made its way to the United States Supreme Court and will be decided later this year. The question the Court will look to answer is: “Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.” In other words, can a student like Levy, whose speech occurred off her school’s campus, be monitored by her school?
The Third Circuit in BL v. Mahanoy Area School District ruled that Tinker does not apply to student speech that occurs outside a school’s premises. The Third Circuit said, “Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur.” Speech that occurs on-campus, they contend, can be monitored because of its direct impact on the conduct of the school. Yet, speech that occurs outside of its premises “makes little sense [to monitor] … given that any effect on the school environment will depend on others’ choices and reactions.”
In their petition for a writ of certiorari, the Mahanoy Area School District contested the Third Circuit's decision that significantly inhibited a school’s ability to punish disruptive student speech that occurs outside of their campus. They write that “in the Third Circuit, off-campus student speech is beyond the school’s power to discipline so long as that speech receives a modicum of First Amendment protection—even if that off-campus speech is closely connected to campus, seriously disrupts the school environment, and threatens or harasses other students or administrators.”
Complicating matters is the proliferation of social media which has expanded off-campus speech to a new online medium whose presence can permeate into the student’s on-campus setting. Levy is a case in point, her off-campus social media presence was able to create an atmosphere in her high school that administrators deemed to be disruptive, with the school district noting that Levy’s post circulated throughout the student body and caused an uproar. The district wrote that “Given the magnitude of the reaction, ‘the coaches felt the need to enforce [the relevant school rules] against [Levy] to avoid chaos and maintain a team-like environment.’”
Yet as explained by the school district, affected by the Third Circuit’s ruling are laws like New Jersey’s that look to protect students from harassment and bullying that occurs online (this is because New Jersey is contained within the Third Circuit’s jurisdiction). The district emphasizes this, saying that the Third Circuit’s decision “puts New Jersey schools in a particularly tough bind. New Jersey obligates schools to take ‘appropriate responses to harassment, intimidation, or bullying … that occurs off school grounds.’” Such conduct extends to instances that occur online where “New Jersey law … requires schools to discipline off-campus speech sexually harassing and bullying others online.”
Additionally, the National School Board Association makes a similar argument, noting that the fact that “the majority of state legislatures have not just authorized schools to regulate off-campus bullying, but obligated them to do so, underscores that a school’s ability to discipline materially disruptive speech cannot depend solely on where the speech originates.” The NSBA further elaborates that “Adopting the Third Circuit’s rule would prevent schools from fulfilling this obligation—and invalidate these state laws in one fell swoop.”
This is an important point to consider because should the U.S. Supreme Court follow these lines of arguments and rule in a similar fashion as the district and the NSBA understands the Third Circuit to have, part of New York’s law, the Dignity for All Students Act (DASA), could be jeopardized, seeing a similar fate to part of New Jersey’s similar law.
New York defines harassment and bullying as “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying” that take the forms of verbal and non-verbal actions. Like New Jersey’s law, DASA requires school administrations to promptly investigate instances of bullying and harassment and further requires schools to “take prompt actions reasonably calculated to end the harassment, bullying, or discrimination.”
It also elaborates that conduct that occurs off-campus can be addressed by the school, stating that conduct which “occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment” can be regulated, mirroring Tinker’s language that schools can regulate student speech if it disrupts the school environment.
If the U.S. Supreme Court rules in favor of Levy and interprets Tinker not to extend outside the school’s boundaries, laws like DASA that look to preserve a safe school environment through the regulation of mediums like social media can be jeopardized.
Important to consider, however, is Levy’s argument which asserts that the Third District Court “held only that the First Amendment does not permit public school officials to punish off-campus speech that (1) does not constitute harassment or a threat of violence; (2) took place off campus on a weekend outside of school hours; (3) was not disseminated through school-owned, -operated, or -supervised channels or at a school event; and (4) did not bear the school’s imprimatur.”
The argument also explains that the Third Circuit declined to rule on whether or not school districts can regulate threatening or harassing off-campus speech. Instead, they reserved such a judgement for another occasion.
The contentious nature of the question presented and the different interpretations of the Third Circuit decision reveal the importance of the Supreme Court’s decision in this case. The fact that laws like DASA could be in jeopardy in certain instances raises questions as to what the scope of the decision could have and its impact on the protections of students.
While Levy’s post, as explained in her Brief in Opposition, had “no harassing, intimidating, or threatening speech” associated with it, the district’s argument revealing the implications of this case is alarming. It also reveals the contentious nature of such issues, where there is a fine balance between student speech and the authority of school districts to, in various cases, prevent such acts as cyberbullying from occurring.