A Cheerleader Lands an F on Snapchat, but a B+ in Court
By Justin Driver
Mr. Driver is a professor of law and an expert in constitutional law and educational law.
"In the most significant legal decision involving education in decades, the Supreme Court on Wednesday declared that public school students typically retain broader free-speech protections when they are away from campus, rather than in school settings. The underlying dispute arose when a Pennsylvania school handed a cheerleader, Brandi Levy, a yearlong suspension from the team after she posted a vulgar Snapchat message from a convenience store parking lot one weekend. For First Amendment proponents, the opinion should elicit two — but only two — hearty cheers.
The primary reason for celebrating stems from the simple fact that the Supreme Court declared victory for a high school student in a free-speech case at all. The last time that such a speaker won at the court happened way back in 1969. In that landmark case, Tinker v. Des Moines Independent Community School District, the court found that educators acted impermissibly when they suspended two siblings, John and Mary Beth Tinker, along with Christopher Eckhardt for wearing black armbands to school in protest of the Vietnam War. Since then, the court has issued three major decisions involving student speech. In each instance, it upheld school censorship over student freedom.
This trend of hostility to student speech proved so alarming that some perceptive commentators have asserted that the protection established in Tinker has, in effect, been eroded altogether.
It was far from assured that Brandi Levy’s case would interrupt this distressing anti-speech streak. After all, Ms. Levy was suspended not from school, but from only the cheerleading team. On this theory, some might believe it should be permissible for educators to hold students who participate in extracurricular activities to the most exacting standards of conduct. Relatedly, Ms. Levy’s series of Snapchat f-bombs did not protest anything so lofty as American foreign policy. The court might have been tempted to construe the First Amendment as too momentous — too consequential — to vindicate a disappointed teenager’s salty outburst after being cut from the varsity cheer squad. Fortunately, though, it resisted that temptation. It is particularly commendable that the court did not permit the ubiquity of speech in the age of social media to distort its analysis. The opinion’s protection for off-campus speech is heavily qualified and studiously avoids articulating anything like a clear rule. But the fact that it afforded even some protection in this context should not be overlooked.
The second reason to cheer comes from an important aspect of the court’s rationale. Justice Stephen Breyer’s controlling opinion recognized that schools have an indispensable role to play in forming citizens. “America’s public schools are the nurseries of democracy,” Justice Breyer wrote. “Our representative democracy only works if we protect the ‘marketplace of ideas.’” This passage is a stirring reaffirmation of Tinker’s core insight from more than five decades ago. Tinker understood that students expressing themselves to one another on the issues of the day is not a distraction from a school’s educational mission. Instead, Tinker instructed that such remarks — especially if they represent unpopular viewpoints — form an invaluable part of the educational process itself: “Any variation from the majority’s opinion may inspire fear …. But our Constitution says that we must take this risk, and our history says that it is the sort of hazardous freedom — this kind of openness — that is the basis of our national strength.”
At a time when many harbor grave doubts regarding the value of free speech — including younger Americans who often contend that it tends to shield the powerful and to harm the vulnerable — the court’s rousing recommitment to First Amendment principles on students’ behalf should be cherished.
This decision should not, however, be misunderstood as an unalloyed victory for students’ constitutional rights of free speech. To the contrary, one regrettable strain of the court’s opinion seems to threaten continued recognition of those rights within the school setting. It is this aspect of the opinion that dampens my enthusiasm. The court need not have risked diluting free-speech rights for students when they are within “the schoolhouse gate” — using Tinker’s terminology — in order to vindicate students’ rights beyond that gate.
In an incredibly short majority opinion — one that did not fill even 11 pages — Justice Breyer invoked the in loco parentis doctrine no fewer than four times. That doctrine holds that when students are in school, educators can be understood as parental stand-ins. Justice Breyer deployed the doctrine in the course of stressing that Ms. Levy did not post her message when she was under the school’s authority. Given that her speech occurred off school grounds during off-school hours, educators did not stand in loco parentis.
The in loco parentis doctrine was in no way essential to reaching the correct result in Ms. Levy’s case, and its invocation could spell disaster for the constitutional rights of the more than 50 million students when they are on campus. The reason is simple: Parents cannot violate the Bill of Rights because those protections place limitations on governmental actors — including educators. But if teachers and administrators routinely occupy the parental position when students go to school, that logic suggests they also cannot violate students’ constitutional rights — a determination that would defy several decades of hard-won legal battles.
Had the court relied upon in loco parentis in the 1960s, for example, Tinker would have upheld the educators’ decision to suspend students for wearing black armbands in defiance of express instructions otherwise. That decision would have eliminated the nascent recognition of students’ rights in a wide array of constitutional settings. To be sure, the court has periodically mentioned in loco parentis in school cases over the years. But that doctrine should not be permitted to govern daily school interactions, or speech, in the modern era. As Justice Samuel Alito wrote in a concurring opinion in 2007, “Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials … as if they were private, nongovernmental actors standing in loco parentis.”
Let us hope that Wednesday’s invocation does not bring that dusty doctrine roaring back to life. If it does, though, Brandi Levy’s victory will certainly prove Pyrrhic."
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