“F@#$ School F@#$ Softball F@#$ Cheer F@#$ Everything.” The Supreme Court Clarifies Limitations on Schools’ Ability to Regulate Free Expression

Brandi Levy posed with a friend in a convenience store on a Saturday night in 2017, both brandishing their middle fingers at the camera. She expressed a common sentiment felt by students and student-athletes after a long week of studying and practice, and her word choice was very direct. She typed “fuck school fuck softball fuck cheer fuck everything” and posted it to SnapChat.

These words and this post kicked off a firestorm that got Brandi kicked off the team and ultimately led to the Supreme Court. The court this week upheld her right to share this sentiment and ruled that the Mahanoy Local School District was wrong to suspend Brandi from the junior varsity cheer squad for the post.

The district argued that her social media post was disruptive to the school environment. Even though it happened away from school and not during school time, her rant would suggest that she did not want to belong to those groups, and that her commitment to them was lacking. It could certainly affect relationships and the spirit of the team. No doubt, in the intense world of adolescents and competition and the need to belong, this caused conflict among students and even staff. The district determined that removing her from the team was an appropriate step and backed the coach and principal.

However, the Court ultimately decided “While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B.L.’s interest in free expression in this case.” You can read the full decision here.  

Brandi, and other students like her, were free to express opinions about school – even profane ones – away from school on their own time.

The school has an interest in promoting free expression

The Supreme Court has made similar determinations in favor of students’ speech in the past. Students have been granted the right to silently protest war, for instance. However, students are denied the right to give lewd commentary as part of a campaign for school office as a result of the Frazer decision, and schools can restrict expression in school-sponsored media according to Hazelwood.

It is the war protest decision, Tinker v Des Moines, that is most often cited by supporters of students’ free expression.

In protest of the Vietnam War, students across the nation were wearing black armbands to school. Many schools were banning these armbands, labeling them disruptive and anti-American. 

In 2005 a colleague of mine arranged to have Mary Beth Tinker speak to our students on the UC campus, which was across from Hughes High School where we taught. The lead plaintiff in one of our most prominent student free expression cases, Ms. Tinker explained her rationale for wearing the armbands. The war was wrong-headed. Too many American soldiers and Vietnamese citizens were dying over a simple ideology. She was willing to risk suspension in order to stand up for her beliefs.

In this speech, she wore the same black armband she had worn to school. And she constantly reinforced the court’s decision by repeating the oft-quoted line that students do not “shed their Constitutional rights to freedom of speech … at the schoolhouse gate.” 

Our students asked her questions, many of which centered around the broadly unpopular Iraq War, which had started just two years earlier. Mary Beth noted that she had protested that war too.

…

The next day, one student tested out his freedom of speech in first bell. Pinned to his shirt was the handwritten statement, “Fuck the Iraq War.” 

The teacher sent for me and, without disrupting the class, pointed out the student. In the hall between bells, we teachers discussed the appropriate reaction. We debated that his message included profanity, which violated school and district dress codes. We also offered respect that he was applying his learning to his own context, and noted that he was really pushing the free speech aspect of his war protest. In the student’s defense, one teacher added, “I mean, after all, fuck the Iraq War, right?” We all nodded in agreement. 

“But we just can’t do that particular thing right here,” I reminded. Again we all nodded.

We decided that his use of profanity violated our policy against profanity on clothing, but that he was certainly well within his rights to express his opinion – without profanity – while at school. We also decided that I should be the one to talk to him.

I sat down with him and reviewed what we had learned from Mary Beth Tinker the day before. I also reminded him of the Frazer decision, which I had studied years earlier but had not thought much about in the intervening years. This decision explicitly did not protect lewd or profane speech on school grounds during the school day. I told him the sign had to go, in its current form, but I was open to solutions. He proposed an alternative sign where he scratched out most of the offensive word, leaving it to the imagination of the reader to determine what it was. Now it looked something like this.

F🅧🅧🅧 the Iraq War.

– one student sign the day after meeting Mary beth Tinker

Close enough!

I sent him back to class with his modified sign. He wore it the rest of the week. At the end of the quarter his social studies teacher, who had arranged the lecture from Ms. Tinker, gave him a full letter grade of extra credit. After all, taking what you’ve learned and applying it to real life is the goal of a good education, and certainly merits more credit than passing a quiz on some historical event.

School leadership should be rational

There are definitely times that off-campus speech needs to be brought to the school’s attention. Threats of violence or serious conflict that would disrupt order in the school are clearly worth investigating. As an administrator I’ve spent weekends following up with parents and students and staff to ward off fights or school-related conflicts and prevent students from being injured or embarrassed. One colleague not too long ago started a weekend off with helicopters and a manhunt around his school that involved a student and several people from outside the school. 

In this decision, the Court recognized that there are many situations where the school would reasonably intervene in misbehavior off campus. These include bullying, harassment, threats, the misuse of computers, and the failure to follow assignment directions.

That is to say, the real world intrudes.

What the Tinker and Mahanoy decisions reveal is that schools must be rational in how they apply restrictions on free speech in the school. That is, they reveal what we have known all along: education is a human endeavor.

One could imagine the Tinker siblings (Mary Beth’s brother also wore an armband to their high school and faced the same consequences) simply wearing their armbands in protest and … nothing more. They could go to classes, perhaps face some comments and even be ostracized by some classmates (the war had strong support among all Americans, initially) but in this scenario the school would not need to intervene and their protest could go largely unnoticed. If the goal was not to disrupt instruction, it seemed necessary to note that the reaction to the speech was more disruptive than the speech (or in Tinker’s case, symbolic speech) itself.

Likewise, Brandi Levy’s comment could have gone the way of most SnapChats … lost and forgotten in the ever-updating feed. However, the school’s reaction caused more disruption than the speech itself. Confrontations, suspension from the team. Heartache and embarrassment. Angry calls and meetings.

What should have happened? What would I have done? If Brandi was one of my students, and this post was brought to my attention, my first thought would be about … Brandi. In the post, she seems stressed. I’d ask her coach to check in with her. If I saw her in the hall I might ask if she was doing okay, and if she expressed any concern about her workload, I might have a supportive counselor or teacher seek her out to offer her a chance to unload.

These Supreme Court decisions reveal what we have known all along: education is a human endeavor.

Adolescents have it rough. They have shifting responsibilities, new expectations, expanding worlds, burgeoning sexuality, new-found self-consciousness. And all this is magnified through today’s social media landscape where a poor choice can be seen by dozens, hundreds, or even millions of people.

They deserve some grace and some space. And they deserve to have spaces to unwind, express themselves freely, and safely experiment with boundaries. Schools don’t have to only play the role of boundary-provider. Schools should nurture, listen, and help students navigate these problems. 

I was tempted to include the Snapchat picture here. It’s relevant. It’s engaging. But it doesn’t contribute meaningfully to the story, and it doesn’t give her the chance that all of us need – to leave our mistakes in the past. I opted not to include it.

With new-found clarity from the Supreme Court, schools can also stop pursuing free-time self expression, and focus on the work within the walls and time constraints of school itself.  And they can work on helping students navigate adolescence.