Mahoney v. Levy: the Evolution of Students’ First Amendment Rights

Education, First Amendment, Minors
Photo of Brandi Levy in high school, wearing a Mahoney High School cheerleading uniform and holding gold pom poms.
Brandi Levy

On Wednesday, June 23, 2021, the Supreme Court ruled 8-1 in favor of Brandi Levy and public school students’ off-campus speech rights, in the case Mahoney School Board v. Brandi Levy. In 2017, Levy, then a 14 year old high school student in Pennsylvania, tried out for her school’s varsity cheering squad. After not making the team, she vented her frustrations in a Snapchat video, where she flipped off the camera and dropped a few swearwords. The school, after seeing the video, subsequently suspended her from the junior varsity cheer squad, saying that her video and its message violated the cheerleading code of conduct. After failing to come to a resolution with the school, Levy and her parents sued, arguing that punishing her for off campus speech violated Levy’s First Amendment rights. The case made its way through a federal district court, in which judges agreed with Levy, followed by a federal appeals court, and finally, up to the Supreme Court. 

This case is not the first time a public school student has stood up for their First Amendment rights in court. In 1969, 13 year old junior high student Mary Beth Tinker and her friends planned to protest the Vietnam War by wearing black armbands to school. When the school heard about the planned protest, they banned it, and then suspended Tinker and friends when they showed up to school wearing the armbands anyway. Tinker, represented by the ACLU, sued the school, saying the suspension and ban violated her rights to free speech and expression. In the now landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court ruled 7-2 in favor of Tinker, saying that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” There are certain exceptions and special circumstances under which the school may regulate student speech: vulgar language said on school property during a school assembly (Bethel School District No. 403 v. Fraser); speech that promotes illegal drug activity (Morse v. Frederick); and  speech which is part of a curricular activity and appears to be promoted by the school, such as reporting in a school newspaper (Hazelwood School District v. Kuhlmeier). Additionally, Tinker stated that schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” These special circumstances are what the Mahoney School Board was attempting to apply to Levy’s off campus speech. 

Writing for the majority opinion, Justice Stephen Breyer said, “The circumstances of B. L.’s speech diminish [emphasis added] the school’s interest in regulation.” Levy’s speech took place off campus, outside of school hours. The posts were made using a personal cell phone, as opposed to a school regulated form of communication, such as a classroom laptop. The posts were sent out to a private group of friends (one of the friends in this group showed her mother, who was a cheerleading coach). Finally, Levy did not identify the school itself, or indicate a particular person. Therefore, the court determined that her speech did not meet the qualifications set in Tinker for disruptive behavior. Additionally, the court found that because Levy’s posts were a criticism of authority (the cheerleading staff), they were protected under the First Amendment. The majority opinion states: “The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.” Essentially, if Levy were an adult, this type of speech is exactly the speech that the Constitution is fighting to protect, and public schools should take special care to educate students on their Constitutional rights. 

While this case is certainly a huge win for public school students and their First Amendment rights, the Supreme Court was careful to say that this ruling applied narrowly to this specific situation. At the appeals level of Levy’s case, the court, in siding with Levy, determined that the school violated her First Amendment rights because off campus speech could not be regulated by the school at all, and that Tinker’s special circumstances applied only to on campus speech. However, Justice Breyer and the concurring justices disagreed.

“Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always [emphasis added] disappear when a school regulates speech that takes place off campus.”

Situations in which a school can regulate off campus speech may include: serious harassment or bullying of an individual; specific threatening or targeting of a teacher; cheating or other instances of breaching the rules for assignments; misuse of school security devices, such as sharing private information on a school computer. In these situations, the school bears the burden of proof in order to justify regulating school speech away from school property. 

Another notable difference between Tinker and Levy is the advent of the Internet. In 1969, “on campus” clearly referred to school property and school hours. “Off campus” referred to anything outside of those parameters. Now, especially after 2020 and the substantial increase in online education, the distinction between on and off campus is blurred. With video technology, recorded lectures, and flexible deadlines, students could be at school literally at any time of the day. Justice Breyer indicated that this blurred distinction was yet another reason why the Court hesitated to apply additional parameters in which schools could regulate student speech. 

Given that several of the major court cases since Tinker v. Des Moines have cut back on students’ First Amendment rights, Maloney v. Levy is a decisive win. However, with the narrow application of this ruling, and the evolution of online education in this country, I anticipate more cases like this one, defining students’ constitutional rights for the future.

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