This is a slow news week in the world of domestic relations. For this lawyer only two Christmas crises and those easily resolved. Hollywood is obsessing over whether Jennifer Anniston’s holiday ornament with a Covid theme was insensitive. We know that at least 1,600 people who started the day with the ability to worry about that subject won’t have to grapple with it any longer as they will have died today from the disease.
The interesting subject for me today was at the corner of constitutional rights and adult authority. It is a case decided in Pennsylvania and headed to the Supreme Court of the United States. It ties into a subject we have written about before; that of free speech versus responsible speech in an age where the power to publish is governed only by the “send” button.
Our subject is a high school student we know only as B. Levy. She attends school in central Pennsylvania, not too far from Williamsport. As a freshman she was selected as a junior varsity cheerleader. Nothing unusual there except that in her junior year she did not make the varsity squad.
This did not sit well with Ms. Levy and it was accompanied by other life disappointments related to her softball team and her concerns about how she would do in those nettlesome exams that come about when you are a junior. In my day, these indignities were suffered alone. But, today we live in an age of social media, and Ms. Levy decided she would let the world or at least her 250 closest electronic “friends” have the benefit of her views. So, the social media application called Snapchat received a photo posted by Ms. Levy and a friend in which they are depicted with their middle fingers elevated and a caption that employed the four letter “f” word. The “f” word was applied to “school….softball….cheer [and] everything.” She then wrote a sentence of protest, which was as grammatically offensive as the four letter word was to refined sensibilities.
As you might have suspected, one of her 250 friends decided to dime out Ms. Levy to a coach at school. The school district has one of those arcane policies that suggest students representing the school on their teams and clubs should have respect for their status as representatives and avoid “foul language and gestures.” The policies even noted that the internet was not an appropriate place to air grievances.
So, the school acted in conformity with its policy. The coaches imposed a one year suspension and the district approved it. The parents of Ms. Levy, whose names are fully identified although the student is named as B.L., appropriately exhausted their appeals through the school district’s hierarchy. When they did not succeed, they filed suit in the United States District Court. They alleged that conduct of their daughter’s kind, when posted on social media off the school campus and not thereafter brought onto the campus (think protest signs or pamphlets although both are decidedly decadent in this century) is free speech protected by the 1st Amendment of the Constitution. In denying her the right to cheer with the team who had rejected her varsity entitlement and incurred her ire, the school district had deprived her of civil rights she had under the Constitution and the United States Code, 42 U.S.C. 1983.
The case was assigned to Judge A. Richard Caputo. School speech cases are among the trickiest cases in constitutional law. The state requires students to attend schools, so kids are not there voluntarily. The schools are responsible for educating and to the best of their abilities “regulating” students. Those are incompatible forces from the start. And, case law regulating whether students could be required to wear bras or skirts below the femoral head have floated about since the 1960s. These cases also included speech such as whether one’s tee shirt can demean the President of the United States or the wrestling coach.
Judge Caputo decided that under prevailing law, speech of the kind offered by Ms. Levy to her Snapchat friends was protected because it did not invade school property. Thus, you can attack the character of the coach while wearing your tee-shirt in town but the school had the right to insist you dress “better” once the bus dropped you on school property. Judge Caputo also observed that while school is mandatory but activities like cheer are not, public authorities couldn’t subvert free speech or other constitutional rights by requiring students to agree to abandon those rights as a condition for participating in extracurricular activities.
The school district appealed to the United States Circuit Court, which ruled in favor of Ms. Levy on June 30, 2020. No fewer than eleven attorneys participated in the appeal, representing nineteen different constituencies including the American Civil Liberties Union, four school board groups and four groups of school administrators.
In affirming Ms. Levy’s right to her snapchat posting the Circuit Court relied upon a 1969 decision of the Warren Court in Tinker v. DesMoines Independent Community School District, 393 US. 503. That case held that free speech rights are not lost at the school house door unless they interfere with the rights of other students to be secure or simply left alone. If speech on campus creates a risk of disruption it may be regulated but even then the risk needs to be balanced against the constitutional right. Disruption presents its own sets of problems as shown by the 2007 Supreme Court case, which held that students were not protected when carrying banners promoting drug use. 551 U.S. 393. Note that the 2007 decision in Moore v. Frederick was 5-4 with a very strange set of concurring and dissenting opinions.
Ms. Levy’s attack upon her cheer colleagues, her softball team and her school generally may be evaluated by a still more conservative US Supreme Court next year. The Court has not granted certiorari (appellate review) but the New York Times today reported that this is considered by constitutional scholars as a case of interest to a more conservative court.
In this case, the plaintiff is appearing through her parents because she is a minor. As a person who enjoys constitutional law, cases such as B.L. v. Mahanoy Area School District fascinate me. I am instantly offended by her vulgar behavior and wonder what lesson the child is to learn from a dispute where her offhand snapchat message is now evaluated by the New York Time’s Supreme Court correspondent. Meanwhile, in 1968 I lived through whether “girls” could wear “pants” in school and as a student council president in 1973 I secured the rights of students to smoke cigarettes on school property. (Hmmmm…)
But, suppose Pere et Mere Levy (parents of B.) were separated and did not agree about whether their daughter should be teaming up with the ACLU and the Pennsylvania Center for the First Amendment? Suppose one parent thought a one year suspension was just for a published attack on her coaches and fellow cheerleaders? Suppose the parents agreed that her speech should be protected but one parent saw harm coming to the child from the notoriety associated with a legal attack on the local school district and to some extent, the child’s peers. Are family court judges supposed to decide these matters. And, what criteria should they employ?
I also have concerns about the practical aspects of what our society now wants judges to do to remedy these situations. I have not seen the specific order entered by the trial court, but put yourself in Judge Caputo’s position. You order the child to be re-instated to the cheerleading squad. If the coach does not permit Ms. Levy to participate in the half –time festivities; is this a contempt of your order? Should you direct the school district to re-form its squad and eliminate a person to create an opening for this child. A three or four person cheerleading pyramid does not work better or at all simply because the federal courts order more personnel to participate. I get the constitutional principles involved and realize that people like Rosa Parks or John Lewis did not win many friends in their broader community by advancing constitutional principles. But teenagers are poor cannon fodder in constitutional warfare and I wonder whether all the lawyers, judges and scholars can ever provide Ms. Levy with the relief she was seeking when she posted her intemperate message. In the end, she just wanted to be varsity and not a famous relic of constitutional law. Parents and adults sometimes forget that message when they take matters to court.