Cash Mendenhall: Free speech beyond the schoolhouse gate
Salt Lake Tribune
By Cash Mendenhall
June 8, 2021
In the spring of 2017, the principal of the Mahanoy City High School in northern Pennsylvania, suspended freshman Brandi Levy from the cheer team after he saw a profane Snapchat post she made while off-campus. That administrator probably did not realize that the suspension would launch a lawsuit with the potential to change the rights of young people in the United States. But that’s what happened.
On April 28, 2021, the U.S. Supreme Court held oral arguments for this case, Mahanoy Area School District v. B.L., setting the stage for a decision this June in one of the most important student free speech decisions in decades. So far, lower courts have ruled in favor of the teenager, claiming that the school district was incorrect to restrict her off-campus speech because her words did not disrupt school.
As Federal District Court Judge A. Richard Caputo wrote, “Simply put, the ability of a school to punish lewd or profane speech disappears once a student exits school grounds.”
The key detail of the case is that Levy published the Snapchat post off-campus and outside of school hours, a key distinction between disrupting school and voicing an opinion. According to Levy’s attorney, ACLU National Legal Director David Cole, putting online and off-campus speech under school control establishes a precedent in which “kids won’t have free speech, period.”
“That’s where kids speak,” Cole added, and he couldn’t be more correct.
Digital communication, whether via Snapchat, text, Instagram, or TikTok, is more important to our generation than any other medium. Allowing school administrators to regulate that avenue of communication would eliminate First Amendment protections for every young person in America.
During oral arguments in April before the U.S. Supreme Court, the justices appeared to agree with Cole’s argument, including conservative appointees like Justice Brett Kavanaugh. Despite these encouraging signs of support from the court, this case raises the stakes for future free speech rights of students because any decision will have immediate and lasting implications across the nation.
The history of schools limiting the free speech of students is long and troubling, with the capstone being another Supreme Court ruling, Tinker vs. Des Moines Independent Community School District. Set against the backdrop of the Vietnam War during the 1960s, the case concerned five students who attended school wearing black armbands to protest U.S. involvement in the war. After the students were suspended, their parents sued the school district, and the case eventually reached the Supreme Court. In February 1969, the justices handed down a 7-2 ruling which included the famous phrase that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
This landmark decision gave rise to the “Tinker test,” which asks whether student speech disrupted the discipline or operation of the school. This test underlines every student free speech dispute since 1969, including the example of Brandi Levy, where administrators claimed her social media post failed this test.
I would argue that we need more student speech, not less, both in school and outside of it. And we need the courts to respect the right of students and young people to engage in politics and protest.
Despite the lockdowns spawned by the pandemic, civic participation among young people has increased since last spring, with students engaging in racial justice, environmental awareness, and community activism. From marches and protests to petitions to bills introduced at our state legislature, Utah students haven’t just kept their First Amendment rights, but have pushed them further than ever before.
As a high school student, I believe attempts to block free expression — to allow school administrators or anyone else to regulate what a student can say in their private life — limits our ability to exercise our civil liberties. The voice of students is vital in a democratic society, both in and out of the classroom. We need to make sure that everyone — from the justices on the U.S. Supreme Court to elected officials and high school principals — can hear us loud and clear.
Cash Mendenhall is a freshman at West High School and an intern at the ACLU of Utah. The opinions expressed in this article do not necessarily reflect the views of the ACLU of Utah.