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Landmark Case May Dictate How Far School Districts Can Go in Disciplining Student Speech Online

By Nora Jacobs, Hennes Communications

A Pennsylvania student’s decision to express her frustration about being passed over for promotion on the cheerleading squad will mark the U.S. Supreme Court’s first review of the limits of free speech for students in the age of social media when it rules on a case heard April 28.  School administrators, school boards and parents will want to watch closely for the court’s decision, expected in June, in the matter of Mahanoy Area School District v. B.L., which many court watchers say will be the first major review of how much control schools have over what students say since 1969, when the court ruled in favor of a Des Moines student who wore a black armband to protest the Vietnam War (Tinker v. Des Moines Independent Community School District).

This piece, from the Washington Post, provides a good overview of the issues in question, but in a nutshell, the case raises the critical question of how much control school districts have over student speech in an age when more and more of what students say originates on their smart phones – away from campus and outside the normal school day. While the legal principles are far more complex, the case itself involves a then 14-year-old student named Brandi Levy and her decision to express her displeasure about being passed over for promotion to the varsity cheerleading squad by turning to Snapchat and lacing that complaint with a series of F-bombs.  Like all Snapchat posts, Brandi’s disappeared within 24 hours – but not before a classmate saw the post, took a screenshot and shared it with the cheerleading coach.  Brandi was suspended from the squad for a year for violating the team’s rules about foul language and respect.

Brandi’s parents were unsuccessful in appealing the suspension through the district’s administrative channels and subsequently filed a federal lawsuit with the support of the American Civil Liberties Union. The case has been heard twice – most recently in the U.S. Court of Appeals for the Third Circuit – and the Mahanoy Area School District has lost both times.

The question before the court is how much power school districts should have over what students say beyond the schoolyard – as one observer notes, “off-campus, but online.”  It is a question we know many schools are wrestling with every day as they confront issues like cyber bullying, threats of physical harm to classmates posted on Facebook, You Tube videos of underage drinking and racist commentary on Twitter.  While virtually every school district in the country spells out expectations for student conduct, as well as the consequences for violating those expectations, those rulebooks may need to be rewritten when this case is decided.

For an attorney’s perspective on the case, read this piece from USA Today written by Aaron Tang, a law professor at the University of California, Davis, who also served as a law clerk to Justice Sonia Sotomayor.  Of course, for those who are interested, there is lots more to be found on the case with a simple Google search.

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