Gaggle Speaks

Ideas, news, and advice for K-12 educators and administrators to help create safe learning environments.

Written by Dr. Lisa Strohman
on July 15, 2021

Recently the Supreme Court heard what was potentially the most consequential student speech case since Tinker v. Des Moines in 1969. The debate over whether schools can punish off-campus speech has been discussed since the advent of the internet, and more specifically, since the appearance of social media. Since the creation of MySpace, students have been increasingly living on social media platforms, and the COVID-19 lockdowns only made their devotion to it worse.  

State courts are split over the issue of whether Tinker’s ruling applies to regulating student speech outside the schoolhouse gate. On June 23, 2021, the Supreme Court ruled (sort of) that Tinker’s ruling does not apply to speech off school grounds. In Mahanoy Area School District v. Levy, the justices concluded in an 8-1 decision that the Mahanoy Area School District in Schuylkill County violated Brandi Levy’s First Amendment rights by suspending her for a Snapchat post she sent from a neighborhood convenience store. “In May 2017, when she was 14, Ms. Levy made a Snapchat post after an unsuccessful try-out for the school’s varsity team. She uploaded it while at a convenience store in Mahanoy City. The post featured a picture of her and a friend raising their middle fingers, with a profanity-laden caption voicing her displeasure at cheerleading, school, softball, and ‘everything.’ In another post, she questioned another girl’s selection to the cheerleading squad.”

Some administrators believe the Court’s ruling is the most pivotal they have encountered as educators. They had hoped the Court would capitalize on this opportunity by offering clear guidelines to administrators, who are constantly embattled by the issue of social media and the influence it has on their campuses—regardless of where or when it is posted. Unfortunately, the Court did not provide that guidance in its ruling.

Justice Breyer, who penned the majority, offered some hypothetical examples for schools where legal interests remain high in the area of bullying, harassment, and threats of violence, but he left the margin wide in terms of what online behavior “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” (393 U.S., at 513.)

Although arguments were made that the location of the student speech is irrelevant due to the ubiquitous nature of the internet, the Court emphasized that the location of student speech off school grounds and the resulting low level of disruption on school grounds meant that a ruling against Levy could not be supported.  

As a result, schools are left with the difficult task of trying to monitor student speech that the Supreme Court effectively laid out as “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.” This effectively means that the onus is on schools to determine when issues will “materially disrupt” the classroom. The wrong determination could leave them open to lawsuits.

Schools will need to pay attention to the emotional shifts on campus due to online behaviors now more than ever. As a result, the need for online safety education and the technology to monitor online behavior will be greater than ever before. Unfortunately, educators do not have the time or the training to monitor these safety protocols—they will need to outsource the work to experts. Will there be additional costs that impact their overall budgets? Sure. But the impact will be substantially lighter than the impact felt from a “Levy-type” lawsuit against the school.

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