Sports and the law are once again at bat at the U.S. Supreme Court.
At 10 a.m. Wednesday, the nine justices will hear oral arguments for Mahanoy Area School District v. B.L., which, like NCAA v. Alston earlier this spring, centers on student athletes’ rights. Here, the question concerns whether a public high school can remove a student from a team for speech that occurs off campus.
Mahanoy poses broad implications for how all interscholastic athletes use social media and the degree to which coaches can control players’ online expression. College-athlete advocates concerned about “the ability of students participating in competitive sports to make themselves heard–safely, without fear of reprisal” have filed an amicus brief.
In May 2017, Brandi Levy was a 14-year-old freshman on her high school junior varsity cheerleading squad. She hoped to make varsity for her sophomore year and was disappointed when an incoming freshman took the last spot. On a Saturday, Levy shopped at a local store where she took a selfie of herself and a friend holding up their middle fingers. Levy posted the photo as a snap on Snapchat with the accompanying text, “f— school, f— softball, f— cheer, f— everything.” She published a second snap, complaining, “Love how me and [my friend] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?” Neither of the snaps mentioned the specific school, coach or team in question.
The snaps went to Levy’s friend list. They weren’t viewable to the public and would, as other snaps, disappear within 24 hours. Unfortunately for Levy, one of her “friends,” a teammate, screenshot the photo and showed it to coaches. The coaches then suspended Levy for “disrespectful” conduct. In violation of team rules, Levy had used “foul language and inappropriate gestures” and shared “negative information” about the team online.
Levy, now a college student, sued the school district, arguing these rules violated her First Amendment rights. Levy’s arguments hinge in part on the landmark 1969 case Tinker v. Des Moines Independent Community School District. In it, the U.S. Supreme Court held that student speech is protected unless school officials reasonably conclude it will cause substantial disruption. In Tinker, the school illegally punished students for wearing black armbands in protest of the Vietnam War.
A federal district judge, the late Richard Caputo, sided with Levy. He reasoned that her snaps hadn’t caused substantial disruption. “The interest that a school or coach has in running a team,” Judge Caputo declared, “does not extend to off-the-field speech that, although unliked, is unlikely to create disorder on the field.” The judge also emphasized that since Levy’s Snapchat page didn’t portray itself as tied to the team, the “student athlete’s off-the-field speech” didn’t contain “the imprimatur of the school or squad.”
Writing for the U.S. Court of Appeals for the Third Circuit, Judge Cheryl Ann Krause agreed. Yet she went a step further by concluding, “Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” Such off-campus speech, then, is simply outside the school’s capacity to regulate. Judge Krause worried about school administrators, and by implication coaches, extending their control over “new communicative technologies” and “seek[ing] to suppress speech they consider inappropriate, uncouth, or provocative.”
Mahanoy School District petitioned the U.S. Supreme Court, arguing the Third Circuit’s ruling conflicted with analogous cases in other federal circuits. The district maintained that unless the Supreme Court reverses, teachers, administrators and coaches in Third Circuits states (Delaware, New Jersey and Pennsylvania) could face civil rights lawsuits. Students could demand monetary damages over discipline for disruptive social media posts, even posts that “reach the whole school immediately” and “impair the team environment, morale, and cohesion.”
Teacher organizations, school administrators, law professors and other interested parties have collectively filed three dozen amicus briefs. While Acting U.S. Solicitor General Elizabeth Prelogar supported the players in NCAA v. Alston, she and the Justice Department submitted an amicus brief in favor of Mahanoy High. Prelogar maintains that whether a school can punish a student shouldn’t center on “the precise time or location at which the speech occurs.” Instead, “the consequence of students’ speech on other students and school activities” is key.
Prelogar further warns that a school forbidden from being able to discipline “could substantially undermine efforts by schools to address harassment and bullying.” She adds that merely allowing schools to punish doesn’t permit unreasonable punishments. She cites the example of “off campus speech by student-athletes demanding that their coach resign”—disciplining students in that situation “might be unconstitutional.”
Writing on behalf of college athlete advocates, University of Denver law professor Justin Marceau urges the Supreme Court to affirm the Third Circuit. He argues that school oversight of students’ social media postings “would result in ‘open season’ on whistleblowers within high school and college athletics.” This is because athletic departments could define complaining about the department “as a punishable act of ‘disruption’ unprotected by the First Amendment.” Marceau emphasizes that many college athletes are engaged in conduct that could be considered “disruptive.” This includes efforts for name, image and likeness rights, the #NotNCAAProperty campaign, exposing sexual abuse, and promotion of social justice and Black Lives Matter. Marceau specifically references Missouri football players going on strike in 2015 to oppose school administrators as an illustration.
Although Levy was a high school student, her case, as Marceau explains, would become relevant Supreme Court precedent for other student speech cases—including those of college athletes. The Court will issue its ruling this summer.