How much can freedom of speech be limited? Courts and legislatures alike have been grappling with this question since the signing of the Constitution. More recently, in 2017, high school freshman Brandi Levy did not make the varsity cheer team at her Pennsylvania public school. Levy then proceeded to post a Snapchat featuring her middle finger and the caption, “F— school, f— softball, f— cheer, f— everything.” After being shown the video by another student, the cheer coach and most of the cheer department decided to take disciplinary action by suspending Levy from the junior varisty cheerleading program for one year. Since then, we have witnessed the four-year legal debate as to whether this disciplinary action was a violation of Levy’s First Amendment freedom of speech.
Earlier this year, the Supreme Court ruled in Levy’s favor, arguing that this speech was off-campus and did not directly threaten or bully another individual. Therefore, she was not subject to school discipline. However, Justice Clarence Thomas dissented in the 8-1 majority by asserting that the majority tethers its argument to unsubstantiated foundations. The long-held principle of in loco parentis holds that schools substitute for the role of parents while children are attending. Yet, Thomas questions the boundaries and extent to which schools may utilize this principle, particularly when students are off-campus. He cites precedent to demonstrate that schools have historically been condoned by the courts in disciplining students for an off-campus activity that posed a “proximate tendency to harm the school environment.” Deskins v. Gose clarifies that speech that has a tendency to injure the school or subvert authority can be subject to discipline “wherever the acts may be committed.” Additionally, Thomas references a Missouri Supreme Court case. The court ruled that schools could discipline any act committed outside of school with “subversive effects on the good order and discipline of the school.”
Justice Thomas argues that the majority of the court ignored these precedents when ruling in favor of Brandi Levy’s claim to freedom of speech. Continuing, Thomas notes that schools differ from other public entities in that they are endowed with the authority of in loco parentis. He writes: “This principle freed schools from the constraints the Fourteenth Amendment placed on other government actors.”
With the increasing notion of entitlement to do as we please permeating our culture, it seems to me that we have lost sight of the value of authority, especially parental and academic authority. This respect for the authority does not mean blind submission to oppressive controls. Still, it does mean that these entities have the right, and even the duty, to exercise disciplinary measures when speech threatens to harm the school environment.
Beyond the fundamental debate of the extent of an educational disciplinary authority, Justice Thomas also brings to light the sheer incompetence of schools and courts concerning accommodating technological advancements in defining speech. Thomas explains: “This case involves speech made in one location but capable of being received in countless other – an issue that has been aggravated exponentially by recent technological advances.” In a practical sense, this case exposes the failures of schools and courts to adapt to the development of technology.
If terms had been defined and disciplinary measures outlined, including provisions for speech made via technology, this case would have been irrelevant. However, vague definitions of “on-campus,” “school-related,” and “speech” have created a vacuum in which anyone may posit their own definitions.
In sum, the precedent of past rulings, as well as the principle of in loco parentis, seem to indicate that speech with the effect of harming or undermining the order or authority of the school is subject to discipline. Although free speech sounds like something we as freedom-lovers ought to champion, we must evaluate the circumstances of the case before throwing all our support behind it.
The implications and manifestations of this ruling will impact schools around the nation, fettering the authority of schools to discipline the speech of their students. Why was Levy suspended from the cheerleading team for one season? Because she spread a message which posed a proximate tendency to harm the school environment. There is no reason this speech should not be subject to appropriate disciplinary repercussions.