Politics, Moderate



Court Case Pits Schools Against Parents

Corey Friedman on

Battle lines are being redrawn in a First Amendment case on the Supreme Court's docket. What started as a tussle between teenagers and adults is now a power struggle between parents and government.

Twenty-three state attorneys general and one deputy attorney general filed a friend-of-the-court brief in Mahanoy Area School District v. B.L., a lawsuit that could determine when -- or whether -- public schools can punish students for off-campus speech. The coalition contends limiting the scope of schools' authority could undermine state cyberbullying laws.

Prosecutors are playing Chicken Little, and what sounds like a sky-is-falling claim is only true in the narrowest sense. The Mahanoy case doesn't involve cyberbullying, and its outcome won't affect criminal statutes that address online stalking and harassment. The laws at issue are administrative codes directing schools to investigate students' bullying complaints.

North Carolina Attorney General Josh Stein knows this all too well. He's one of the two dozen signatories of the high court brief, and his state had tried to make cyberbullying a class 2 misdemeanor. But the North Carolina Supreme Court struck down that law in 2016, ruling that it violated defendants' free speech rights.

"Bullying" is a buzzword without a precise legal definition. It's understood to include illegal behavior like assault, threats and harassment, but it also encompasses taunts and putdowns. While true threats don't enjoy constitutional protection, criticism can't be criminalized.

Many states have laws authorizing schools to investigate cyberbullying when it causes a stir in the classroom, even if mean-spirited messages were posted to social media outside of school. That authority relies on the Supreme Court's ruling in Tinker v. Des Moines, which held that public schools can limit student speech when it would create a "substantial disruption."


Tinker initially expanded, rather than limited, minors' First Amendment rights, as justices ruled that the Des Moines Independent Community School District couldn't discipline students for wearing black armbands to protest the Vietnam War. The case involved a rule that only applied on school grounds.

In the internet age, judges began applying the Tinker standard to off-campus speech that causes disruption at school. After the U.S. 3rd Circuit Court of Appeals rejected that premise in the Mahanoy case, the Supreme Court agreed to review the decision. A broad ruling could set an entirely new standard for schools' ability to wade into extracurricular speech.

Mahanoy Area High School in Pennsylvania kicked student B.L. off the junior varsity cheerleading team after she posted a Snapchat selfie holding up a middle finger with a vulgar caption. Other students saw the picture, and one alerted a cheerleading coach.

B.L. is Brandi Levy, who has publicly identified herself in media interviews about the case. Brandi's dad, Larry Levy, supported his daughter's court challenges to assert his rights as a parent.


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