Who Gets to Tell Your Kids to Shut Up?

Posted July 9, 2021
By Danielle S. McLaughlin

Remember when you were in high school and you got angry about a decision made by a teacher, team coach or principal? 

Brandi Levy, a grade 10 student in Pennsylvania, found out she had not been promoted to the varsity cheering squad in her public high school. She also did not approve of the choice of a younger girl for the more senior team position. Not only that, she did not get the position she wanted on the school’s softball team. She was not a happy girl.

The following Saturday, she and a friend went to a local convenience store where she went onto her favourite social media platform, Snapchat, took a photo of the two of them with their middle fingers raised and posted it to her online friends with the words, “Fuck school fuck softball fuck cheer fuck everything.”

While that posting disappeared in 24 hours from the site, a “friend” took a screen shot of it and showed it to a girl whose mother was one of the school’s cheerleading coaches. Brandi was then suspended from the cheering team for her full grade ten year.

The school and the coaches said Brandi had violated the school’s cheerleading rules as well as the “Personal Conduct Rules.” Brandi’s parents went to speak to the principal of the school and to the school board to get her reinstated to the team. It did not happen.

Now here is where I believe the US and Canada diverge. If Canadian high schools have cheerleading teams, and I have been assured that they have, the school’s response to Brandi’s tweet could have happened as easily in Canada as in the US.

Brandi’s family decided to go to court to sue the school board for breaching Brandi’s right to freedom of speech. They knew that in-school expression that is not of a substantially disruptive nature is protected by the Constitution – and by the well-known 1969 Tinker decision. This U.S. Supreme Court decision is famous for stating that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, Brandi Levy and her friend were outside the schoolhouse gate, using her own phone, in a store, on a Saturday. How far should schools be able to reach to punish students for their off-campus expression? In the case that eventually came before the U.S. Supreme Court, reiterated the Tinker decision, stating that, while schools are “special settings” and therefore have more leeway in regulating behaviour and certain speech, they cannot go as far as Brandi Levy’s school did and reach into parental territory. If you think your kids’ behaviour or speech is unacceptable, it is up to you to do something about it. Neither the US Constitution nor the Canadian Constitution apply to family relations. Your kids cannot claim you have breached their Charter rights when you demand they stop swearing. 

Public schools, however, are an arm of government. In both countries, the Constitution applies to school/student/teacher relations. 

Schools are considered to be in loco parentis. This means they are expected to protect and discipline children as a responsible parent would. If you would tell your kid to shut up or face discipline, should the school be able to do so as well? There is a very fine line between schools acting like a parent, and a government body censoring speech.

Canada does not have a Supreme Court decision like the one in Tinker nor, indeed like other US school expression cases. Is there something about Canada that makes us deferential to school authorities? Are Canadians more likely to move a child to another school when they believe the current one is making poor decisions? Do we rationalize that the child will be out of school soon enough? Or are we just not thinking about the long-range effect we might have if we were to spend the energy, time, and money pursuing justice? 

It is not easy to take such a case to the Supreme Court in either country. And of course, it is risky. There are no guarantees which way any court will decide. But organizations like the American Civil Liberties Union and The Canadian Civil Liberties Association continue to stand up strongly for freedom of speech. 

In its decision in the case brought by the ACLU and Brandi Levy, the U.S. Supreme Court ruled: “While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”

The Court added: “It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Even when speech seems trivial, we still need to fight for the right to say it.