SACRAMENTO, Calif., May 7, 2021 /PRNewswire/ -- Managing partner of Penney and Associates Lawyers weighs in on the controversy over whether a school can discipline a child for activities that have occurred off campus? https://www.penneylawyers.com/ .
This controversy revolves around the 2017 case of then 14-year-old Brandi Levy and the Mahanoy Area School District in Pennsylvania. Brandi was a junior varsity cheerleader at Mahanoy Area High School in Mahanoy City, Pennsylvania. After one year of cheer Brandi was hoping that she would be moved up from junior varsity to varsity cheerleader. However, she was not moved up to the varsity cheer squad and she like many kids was quite disappointed. On May 28, 2017, Brandi Levy left a Snapchat on her social media showing a picture of her and a friend flashing the middle finger with the text "f*** school, f*** softball, f*** cheer, f*** everything." The snap was set to private, and it did not go out to the public, but admittedly to approximately 250 friends and acquaintances. The Snapchat picture was taken in front of a convenient store off campus with no school logos or even mention of Mahanoy Area High School. Five days later, on June 1, 2017, Brandi Levy sent the snap to one of the cheer squad coaches. After that she was taken out of class and allegedly advised that she was dismissed from the cheer squad for being disrespectful to the school, coaches, and other cheerleaders. Her parents immediately appealed to the school district to reconsider the punishment to no avail.
On September 25, 2017, Lawrence and Betty Lou Levy filed a lawsuit as guardians for their daughter in the United States District Court for the Middle District of Pennsylvania. They filed a complaint, motion for temporary restraining order and for a temporary injunction against the Mahanoy Area School District. The court granted the temporary restraining order prior to an October 2, 2017, hearing, details of which will be noted later. https://www.supremecourt.gov/DocketPDF/20/20-255/169543/20210222133017627_Mahanoy%20-%20Joint%20Appendix.pdf
APPLICATION OF TINKER
The Supreme Court has not rendered a decision in the Levy case as of the date of this article. However, this is not the first time that the Supreme Court of the United States has had to decide whether school children should be disciplined for what may be considered controversial statements. The most famous case concerning whether or not a child has certain inalienable constitutional rights of freedom of speech on a school campus was decided in Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969). The issue presented in both Tinker and Levy cases concerns the issue of a child's First Amendment right of freedom of speech at a public school. The question of whether the Tinker case applies to the current Levy case is dependent upon if the courts believe that the times have so dramatically changed since 1965 given the social media and internet boom, that Tinker is too antiquated to apply its substantial disruption test. Moreover, the speed at which news or an individual's expression on social media has become instantaneous and possibly more burdensome for a young immature teenager who may lash out as a number do. The results of such behavior by a teenager can occur in an instant and be publicized across a bigger audience within seconds compared to the audience of a teenager in 1965.
In 1965 the Vietnam war was in full swing and the country was filled with protests and people lashing out about their lack of support for the Vietnam war. Protests were occurring throughout the country during this time concerning the war in Vietnam. However, instead of making a statement on social media that immediately went out to a large group of family, friends, or the world, one's opinions were primarily heard by only a few. The Tinker family were anti-war and decided to make special black armbands that symbolized their protest against the war in Vietnam. The Tinker family lived in the Des Moines, Iowa school district and decided to have their four children and a friend wear the symbolic black armbands in protest to school after the school district created a policy that any child wearing an armband in high school would be asked to remove it immediately. Mary Beth Tinker and friend Christopher Eckhardt were suspended from high school for refusing to remove the symbolic black armband. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines . The Iowa Civil Liberties Union and ACLU got involved to help the Tinkers bring their case before the courts. The District Court in Iowa upheld the school district's rules in stating that the school board had the right to ban the children from wearing symbolic black armbands as a political statement against the Vietnam war. This was, among other things, to allow the schools to keep order. The U.S. Court of Appeals for the 8th Circuit was a tie vote which meant the lower courts ruling went to the United States Supreme Court.
The United States Supreme Court 7-2 ruling came out on November 12, 1968. The majority held that the Tinker's and their one friend's constitutional right to freedom of speech had been violated by the school. The children could wear black armbands in protest of the Vietnam war at school. The court held that one's constitutional rights apply to students and teachers on a school campus. Moreover, the court used what is now called the Tinker or Substantial Disruption Test to balance the schools need to discipline and make rules and regulations compared to one's First Amendment Constitutional rights. The test basically has two parts. First for a school to justify censoring one's freedom of speech they "must be able to show that their action was caused by something more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint." Second the individuals conduct at school would need to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines .
This Tinker or Substantial Disruption Test will more than likely be used by the court in the Brandi Levy case to determine if Brandi Levy had her First Amendment Constitutional rights violated when she was suspended from the cheer squad for expressing herself off campus on social media. A more recent 1986 case where the Tinker or Substantial Disruption Test was applied to determine if another students First Amendment Rights were violated is the Fraser case.
APPLICATION OF TINKER TO THE FRASER CASE
In Bethel School District v. Fraser, 478 U.S. 675 (1986), the United States Supreme Court used the Tinker test to determine if Matthew Fraser of Pierce County Washington High School had his First Amendment Rights violated when he was disciplined for stating sexual innuendos while relating an endorsement for a fellow classmate for a student government position. On April 26, 1983, Matthew Fraser's endorsement speech of a friend for a should government office had several sexual innuendos in the statement. There were no direct sexual statements but a play or pun on words that clearly made one think about sexual innuendos. Fraser was disciplined by the School for using such language. In this case the United States Supreme Court using the Tinker test, found that Fraser's speech could be limited as the school has the right to limit certain styles of speech that may be considered sexually vulgar. Another issue arose that basically noted that the speech was not protected religious or political speech that would be similar to the Tinker children's protest. https://www.law.cornell.edu/supremecourt/text/478/675 .
LOWER COURT RULINGS ON BRANDI LEVY CASE
Fast forward to today's Levy case that is before the Untied States Supreme Court, the court now has the Tinker or Substantial Disruption Test to apply but also has a recent ruling and application in the Fraser case. There are several distinguishable issues in the Levy case compared to the Tinker case. First, the Levy speech was made on social media that did not exist at the time of the Tinker case. Second, in Levy the statements were made while off campus and sent only to her friends on social media with no mention of the school. Levy did later send her post to one of the cheer instructors and it is alleged that several of her cheer friends were on the list that received the post. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-255.html . On October 2, 2017, the United States District Court Middle District of Pennsylvania ruled that Brandi Levy's First Amendment Constitutional Rights were violated, granted their motion for a preliminary injunction against the school and that the school district should reinstate Brandi Levy to the cheer squad. In sum the court agreed with Levy's argument that the school cannot punish a student for out-of-school speech that does not cause a substantial disruption to the school activities. https://www.supremecourt.gov/DocketPDF/20/20-255/169543/20210222133017627_Mahanoy%20-%20Joint%20Appendix.pdf .
On June 30, 2020, the 3rd U.S. Circuit Court of Appeals heard the Levy Case and found that the lower court errored and found for the School District ruling that the speech occurred off campus and therefore the Tinker case and its "substantial disruption test" did not apply. The appellate court refused to give an opinion on the issue of First Amendment Rights of student's speech while off campus. On January 11, 2021, the United States Supreme Court agreed to hear the Brandi Levy case. Recently the parties filed their briefs and made their oral arguments before the court via telephone. It will be interesting to see how the Supreme Court of The United States will apply the "Tinker Substantial Disruption Test" to this case.
TEENAGER'S FREE SPEECH IN MODERN SOCIAL MEDIA TIMES
Should the Supreme Court of the United States take into consideration how times have changed given the social media world as it is today compared to the facts of the 1965 Tinker case? Children and especially teenagers are more likely to have their adolescent mistakes born out all over social media and within an instant compared to teenagers in the 1960s. Should that be a factor in the Levy case? Should there be more deference and forgiveness for what the modern teenager puts on its social media compared to the teenagers in the 1960's? Should an adolescent teenager be given more deference and freedom to speak today as compared to 1965 due to the much different world that we live in today? I asked a 40-year experienced child licensed clinical social worker (LCSW) out of California these questions. He wanted to remain anonymous but was happy to discuss the issues that face our teenagers today concerning a teenager's freedom of speech and in the current climate lashing out on social media compared to the teenagers that had the same social issues prior to the social media boom.
Frederick Penney: The case of Brandi Levy concerns a young teenage girl in 2017 lashing out about things that she was not happy about on social media. Has that become more commonplace today with teenagers?
LCSW: Yes, they are born with it in the womb. Ha Ha.
Frederick Penney: Do you think that teenagers think about the harm that might cause others when they lash out on social media?
LCSW: You must look at the issue of consequences when you think of potential harm that may occur with a social media post. The adolescent teenager usually does not see the consequences, they are impulsive and tend to act and then think about all the consequences later. Once someone reaches adulthood that reasonable adult will generally look at the potential consequences of their actions prior to acting out. But some have reached adulthood but still act as adolescents and do not think of the consequences prior to acting out. Yet the adolescent teenager's brain has not matured enough to think of such consequences.
Frederick Penney: How influential is social media on the adolescent mind?
LCSW: The adolescent age twelve to sixteen's focus is on social acceptance and looking at the world to find acceptance. They look at the fashion behaviors, lifestyle behaviors and this is what they emulate. The teenage adolescent follow and look-up to their hero whomever that may be and generally try to emulate those people's behaviors, this is to fit in and find purpose. In the Levy case that you discussed Brandi to not being move up to the varsity cheer squad may have meant in her eye that she was not accepted and therefore would not fit in. I am not saying that is what happened but when talking about any specifics I can only apply general knowledge of how teenagers act under similar situations. This may be why she lashed out. Though I do not know her or could say this is the reason, but this would be a typical teenage reaction. It may have become a status issue and that is very important to a teenager and their identity with their culture and subculture. Remember, a teenager's focus is validating themselves with self-identification. And in today's social media society that happens at a very rapid pace leaving very little room for error.
Frederick Penney: So, in Levy case the fact that she was not moved up from Junior varsity to varsity when she wanted to may have caused her to lash out because she did not feel accepted and may have affected her identity?
LCSW: It may have sent a message to her or to any teenager as a matter of fact that she felt not good enough and may have made her feel that things it was not fair which is a typical teenage mindset.
Frederick Penney: Have you found that teenagers act out differently now compared to when you first started working as a Licensed Clinical Social Worker 40 years ago?
LCSW: Society was different decades ago, there were more consequences for choices people made. Today when teenagers see that many adults do not suffer as many consequences for what they do they see that and emulate that behavior that does not have the same consequences that applied 40 years ago. Society has redefined accountability noting that there is more blame on someone else.
Frederick Penney: Have you found that it is important to allow teenagers to express themselves on social media. Does this help or hurt them?
LCSW: It is a double-edge sword, if social media is used as connection to society and friends it can be wholesome helpful medium for a teenager. But if it is used negatively to bully then we have weaponized it and it becomes hurtful to teenage adolescents. Not all kids are outgoing and openminded. Some feel better talking to strangers or friends on social media which can be a form of acceptance with validation that they could not have before social media. The negative thing is social media can be a weapon since the teenagers many times do not know the people that are accepting them as supposed friends on social media. Remember It is a need, not a want to be accepted, especially with teenagers.
Frederick Penney: How long have you seen it take for teenagers to mature enough to express themselves in a more mature way?
LCSW: whether in a child or an adult, the mature adult part of brain does not start to fully develop or mature until an individual is in their early twenties. Thus, a teenager at the age of 14 is statistically not fully socially developed enough to always make rational decisions, hence we have a juvenile court system. The 14-year old's reasoning is not fully developed. It is very rare that a person is mentally developed at the age of 14. Teenagers need to express themselves and sometimes do not do it the right way or do it in a way that may hurt others. There are many times they do this because they need help or are looking for an affirmation in life. This may have been what was going on in the Levy case, but I am not sure as I can only tell you what I know from experience what teenagers around the age of 14 tend to do or not do correctly. They think differently than most mature adults and we must remember that in today's fast pace social media filled world an adolescent teenager's mistake is amplified to a degree never imagined just a few decades ago.
SUPREME COURT RULING LIKELY THIS SUMMER
It is likely that the Supreme Court takes several months to decide the Brandi Levy case now that the briefs are submitted, and the oral arguments are finished. Even during the pandemic, the United States Supreme Court has been efficient in getting its rulings out to the public within a reasonable time. It will be interesting to see if the court finds that Brandi Levy's speech is not important enough to be considered protected speech such as political or religious speech. They may just say that her speech is not one noted in the protected area of speech that is recognized by the Constitution. On the other hand, do we want schools to monitor and have the power to discipline students for things they do off campus during their own personal time? Are the schools able to through the social media enter the student's homes and reach through their phones and inhibit their speech? I have to believe that the courts will have to take that into consideration. Will the courts use other case law that I have not discussed? More than likely it will be a combination of all the above, but I do not see any way around the courts not deciding the case according to the Tinker Substantial Disruption Test. We shall see, I have only mentioned possibilities and not a legal opinion. However, this will be an interesting precedent setting case that I believe will be used in the future.