Mahanoy cheerleader’s free speech battle goes to Supreme Court tomorrow

MAHANOY CITY – The battle over a local school’s right to punish a student’s off-campus speech will be heard by our nation’s top court tomorrow morning.

The Supreme Court will hear arguments from lawyers for the Mahanoy Area School District and the Levy family of Mahanoy City in the final step of a court battle sparked by a cheerleader’s suspension for a post on Snapchat.

The case, Mahanoy Area School District v. B.L., dates back to 2017, when Brandi Levy, then a minor and referenced in court documents as B.L., didn’t make the cut for Mahanoy Area’s varsity cheerleading squad.

“In 2017, I tried out for varsity for the cheer team and I didn’t make it,” Brandi Levy told the Sentinel Tuesday. “I was upset that entire week so, on a Saturday, at the Cocoa Hut in Mahanoy, I made a post of me and my friend whipping the finger and it said ‘F— school, F— cheer, F— softball, F— everything.'”

She was a freshman at the time and another freshman had made the varsity squad as well.

“My one cheer coach got the picture of it and she printed it out and told me it was disrespectful towards her and that I was suspended from the team for a year,” Brandi added.

Vic Walczak, legal director for the American Civil Liberties Union (ACLU) of Pennsylvania, which is representing the Levy family, said that the post was to Brandi’s Snapchat story, which the coach did not have direct access to.

Larry Levy, Brandi’s father, said that after the incident, he appealed to both district administration and the school board for the suspension to be rescinded.

“Never thought it would go this far”

The district refused both times, and Levy contacted the ACLU.

“We never thought it would go this far. I thought, once the ACLU stepped in and sent them a letter and explained the whole situation and the case law and foundation on this, that it would’ve just ended there, but it didn’t,” Larry Levy said. “When the court found in our favor, I thought the school just would’ve said ‘enough is enough, we’ve spent enough money on this’ but the school just continued to push this matter further and further and further, costing more of the taxpayer’s money.”

Walczak said that the ACLU of Pennsylvania has been working on student free speech cases since 1999, and that he believed cases decided by the third circuit court of appeals in 2012 set a precedent against punishments like the one levied against Brandi.

“We never thought it would go this far. I thought, once the ACLU stepped in and sent them a letter and explained the whole situation and the case law and foundation on this, that it would’ve just ended there, but it didn’t.”

Larry Levy.

“When we received Brandi’s complaint, we were pretty confident that a letter to the school would resolve the matter,” Walczak said. “The school district didn’t agree, so we went into court.”

Walczak said that they received an injunction, allowing Brandi to continue to participate on the cheerleading team, while they and the school worked through the legal process.

The court has ruled in the Levy family’s favor at every step thus far.

“We were pretty surprised when they decided to ask the Supreme Court to review it,” Walczak said. “Less surprised that the Supreme Court took it, because this is an issue that they’ve never touched and that courts have been struggling with all across the country for more than a decade.”

Walczak said the decision will impact 50 million public school students a year.

“Young people need to have some place in their lives where they have full free speech rights to blow off steam or express their views on politics, religion, or other social issues without having to worry that their schools are monitoring everything that they say 24 hours a day,” Walczak said. “We’re urging the court to protect young people’s constitutional rights to express themselves when they are outside of school supervision.”

Reach out to help, not punish

“I wasn’t proud of what she said, but at the time, I was more concerned with what was going on. Obviously, she was on an emotional roller coaster,” Larry Levy said. “She had finals that week, she had the issue with making varsity, there were issues with softball, everything was balling up into one, and I was more concerned with what led to this, let’s find out what the underlying situation is.”

Larry cited the modern trend where younger people vent about problems via social media.

“This is how us as parents sometimes learn that there’s situations going on with our children that we may never know,” Larry added. “I wasn’t proud of her language but I was more in line to find out what’s going on before it goes into a deeper state of depression or anxiety and so forth.”

Larry expected the school to extend a caring and helping hand and listening ear, instead of a major punishment.

“Kids are learning how to navigate all sorts of difficult social situations,” Walczak said. “They can not be under the microscope by school officials making sure that they say exactly the right thing in exactly the right way all the time. That’s not a school district’s job.”

Vic Walczak, Legal Director, ACLU of Pennsylvania

“Instead of doing that, they compounded the problem,” Larry said. “Cheerleading was her way to get away from it all, it was her only area of sanctity, so-to-speak, and they just took that way.”

“Students shouldn’t have to worry about being disciplined because they express how they feel in today’s age with social media, “Larry added. “School officials can determine anything controversial if they really wanted to, it depends on how they feel.”

“Kids are learning how to navigate all sorts of difficult social situations,” Walczak said. “They can not be under the microscope by school officials making sure that they say exactly the right thing in exactly the right way all the time. That’s not a school district’s job.”

“If there’s violence, if there’s severe bullying going on, that’s one thing, but this kind of speech should not be something school district’s have the authority to discipline,” Walczak added.

Arguments Wed. morning

Arguments for the case will be heard tomorrow at 10am and they will be livestreamed on C-SPAN’s website here.

Walczak said the ACLU’s national legal director, David Cole, will argue the case for their side. Cole, he said, has several Supreme Court cases under his belt.

A decision is expected by the end of June, the end of the court term.

“I wouldn’t be surprised if this isn’t one of the very last decisions issued by the court,” Walczak said.

Nation watches, chimes in

As is usual in such high profile federal court cases, individuals and groups file briefs in support of one side or another.

In this case, several dozen briefs have been filed, including one by the plaintiffs in a case oft cited in the B.L. case, Tinker v. Des Moines Independent Community School District.

John and Mary Beth Tinker, students at the Iowa school, were among ten students participating in a silent protest against the Vietnam War, and were among five suspended for such protest.

The resulting court case determined that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” when it comes to the school’s authority to “prescribe and control conduct.

“This case risks being lumped in with such controversies because it arose from a dispute involving a cheerleader cursing her school and cheerleading on social media. But while this ‘may seem at first blush too inconsequential’ to arouse this Court’s concern, ‘the issue it presents is of no small constitutional significance,'” the Tinkers write in support of the Levy family. “Like all important First Amendment cases, this one is about power, and the authority Petitioner asks this Court to approve is by any measure extraordinary. Even petty officials have the ability to crush individual rights, and for that reason the Court has held that the Bill of Rights limits boards of education and teachers who “may feel less sense of responsibility to the Constitution.”

Also supporting the Levy family are the attorney generals for nine states — Louisiana, Arkansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Texas, and Utah.

“Although this case presents an admittedly delicate constitutional question, it does not raise many of the issues discussed by the Petitioner and the amici that support it. This is a case about nonthreatening, non-harassing, off-campus student speech. This Court should not be tempted to turn this case into a textbook example of bad facts making bad law,” the states wrote. ” For public schools systems, under-policing off-campus student speech rather than over-policing it is undoubtedly the better rule. As it stands today, Amici States are often placed in a no-win situation. If a student says something offensive off campus, schools are expected to punish the student. But once the disciplinary hammer drops, undesirable collateral consequences follow. The punishment chills student speech in a way that is antithetical to core American educational values and the United States Constitution. If the rule is that schools can police off-campus student speech 24/7, then school systems also open themselves up to lawsuits—for either not doing enough or, conversely, violating student rights.”

The Biden Administration, via Acting Solicitor General Elizabeth Prelogar, filed a brief in support of Mahanoy Area.

“Off-campus speech—including speech communicated via email, text message, social media, and the
like—that is harassing or bullying can contribute to depriving victims of the educational opportunities to which they are entitled,” the U.S. wrote. “Under those circumstances, schools officials attempting to satisfy their obligations under federal law to address those harms should not be placed in the difficult position of having to blind themselves to instances of the harassing or bullying conduct that occurred online.”

Mahanoy Area also received the support of the National School Boards Association and the Pennsylvania School Boards Association.

“From the adoption of the First and Fourteenth Amendments through the twentieth century, it has been clear that teachers and administrators need at least some flexibility to correct off-campus speech that directly affects their schools,” the PSBA wrote. “To hold otherwise, as the Third Circuit did, would invite all sorts of mischief, allowing students to bully classmates and massively disrupt classrooms with just the click of a button once safely beyond the schoolhouse gates. Because that view is inconsistent with the original meaning of the First and Fourteenth Amendments, has never been the law of this Court, and would throw classrooms into chaos, this Court should reverse.”

Locally, Shenandoah Valley Superintendent Brian Waite has been keeping an eye on the case, which could impact his, and all, public school districts in the nation.

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