“[Expletive] school [expletive] softball [expletive] cheer [expletive] everything.”
This Snapchat post by 14-year-old Brandi Levy, with the F-word standing in for the family-newspaper friendly “expletives,” gave the United States Supreme Court its first opportunity in 50 years to come down on the side of students’ free speech rights. Posting from her private cellphone, on a weekend, from a convenience store, Brandi vented her frustration at not being selected for the varsity cheerleading team. Her post led to a yearlong suspension from cheerleading. In declaring Brandi’s speech protected, the court emphasized that America’s public schools are the “nurseries of democracy” and established new principles limiting their authority to punish off-campus speech.
Although celebrated as a major win for students, the lack of a bright line rule preserves reliance on discretion in school discipline and perpetuates existing disparities in school discipline practices. Across the country, students of color are suspended and expelled from school at alarming rates, higher than their white peers. The most recent federal data shows the largest discipline disparities are for Black boys, who were given in- and out- of-school suspensions at rates more than three times their share of total student enrollment. Black girls were also suspended at rates almost two times their share of student enrollment. Students with disabilities who receive special education services were also more likely to be suspended or expelled, with Black students with disabilities particularly likely to face school suspensions. These trends are consistent with patterns in Pennsylvania, where Brandi, who is white, lives.
Bias, not behavior, drives these disparities. The vast majority of out-of-school suspensions are for nonviolent misbehavior — like being disruptive, acting disrespectfully, tardiness, profanity and dress-code violations. These infractions, combined with an absence of clear guidelines for discipline, give educators broad discretion to punish students, opening the door to arbitrary decision-making. Subjective criteria exacerbate racial, gender and other biases, as students of color are disciplined for more arbitrary and subjective concerns and for less serious conduct that may not result in a referral for a white student. For example, research shows school administrators are more likely to interpret Black girls’ behavior as loud and overbearing, or to label them as aggressive and confrontational, which leads to increased discipline under subjective schemes. Black girls are often suspended for vague offenses such as “willful defiance,” which is often code for Black girls who refuse to conform to traditional gender expectations — essentially punishing them for failing to assimilate.
LGBTQ+ identifying students of color also report experiencing increased surveillance and policing in school, and biased application of school policies, including harsher discipline for the same or similar conduct compared to their peers. And students with disabilities are too often disciplined for actions that result from their disability or lack of appropriate school supports.
Exclusionary discipline has lasting, harmful effects, including decreased engagement at school, lower academic performance and higher dropout rates. Students removed from the classroom for disciplinary reasons are at a significantly higher risk of falling behind academically. Students who are suspended or expelled are also more likely to later be arrested——fueling a vicious cycle fittingly called the “school-to-prison pipeline.” The pipeline also directly funnels students to the juvenile and criminal legal systems when students are arrested in school, often for arbitrary disciplinary reasons.
The risks of disciplinary overreach are exacerbated in social media where young people routinely seek out connections with peers in ways that have upended traditional notions of privacy and exclusivity. Brandi’s reaction was entirely predictable for a young person hurt by the coach’s rejection. Disciplining students for age-appropriate speech and exchange of ideas subjects them to potentially life-changing consequences, causing further trauma rather than supporting, guiding, or capitalizing on a “teachable moment.”
The Court put educators on notice that their ability to discipline for off-campus speech is “diminished.” But its failure to articulate a clear rule for the regulation of off campus speech leaves students — and particularly students of color, students with disabilities, and LGBTQ+ identifying students — too vulnerable to the discretionary whims of administrators whose historic biases have fed the destructive disparities in school discipline.
While this ruling is not the clear rule we’d hoped for, that should not stop schools and educators from moving away from harmful and discriminatory discipline practices on their own. That would be a real victory to cheer.
Ky’Eisha W. Penn (email@example.com) is a staff attorney at Advancement Project National Office. Kate Burdick (firstname.lastname@example.org) is a senior attorney at Juvenile Law Center. Advancement Project and Juvenile Law Center co-authored an amicus brief, along with Arnold & Porter, on this topic in the Brandi Levy case.