The Supreme Court on Wednesday found that a Pennsylvania school district had overstepped its authority when it punished a cursing cheerleader for her social media posts.
In an 8-1 decision, the court found that, in this particular case, Mahanoy Area High School’s interests in regulating the now-graduated student Brandi Levy’s off-campus speech were insufficient to overcome her own rights to free expression. Justice Stephen Breyer delivered the court’s opinion. Justice Clarence Thomas issued a lone dissent.
SUPREME COURT CONSIDERS FREE SPEECH IMPLICATIONS IN HIGH SCHOOL CHEERLEADER’S FIRST AMENDMENT CASE
Levy’s case arose in 2017 when Levy did not make her varsity cheer squad and responded with a Snapchat story, posted on a Saturday and off campus, in which she said, “F*** school. F*** softball. F*** cheer. F*** everything.” When faculty members saw the post, the school banned her from the sport for a year.
Levy and her parents teamed up with the American Civil Liberties Union to take the case to court, arguing that the school had broadly overreached into her personal life. The school responded that, under a 1969 Supreme Court decision allowing schools leeway in regulating student speech, it could punish her because Levy’s post had “substantially” disrupted school order. Several lower court judges sided with Levy, finding that decision did not apply.
Breyer, while careful to protect schools’ ability to regulate some off-campus speech, wrote that it was clear that the school had gone too far in Levy’s case.
Chief among the reasons, he said, was the context of Levy’s post, namely that the Snapchats were not aimed at the school and were posted for a semiprivate audience of Levy’s Snapchat friends. The fact that Levy did not make her posts on a weekday was another major factor, which deprived the school of the argument that it was acting in loco parentis.
“There is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad,” Breyer concluded.
At the same time, Breyer said he did not agree with the way in which lower courts had sided with Levy. These decisions had been too broad, he wrote, pointing out that schools often have an interest in regulating speech off-campus, especially in the case of “severe bullying” or threats aimed at students or teachers.
Breyer added that in recent decades, it has become more difficult to determine what is technically on-campus and off-.
“Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list,” he wrote, saying that it would be difficult to lay down a hard rule.
Similar questions divided the justices during the case’s arguments. Justice Samuel Alito, in a concurrence joined by Justice Neil Gorsuch, wrote that, more than answering questions about school regulation of speech, the case acted as a warning to teachers and administrators wading into that territory.
“If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory,” he wrote.
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Thomas in his dissent wrote that the court had ignored that schools “historically could discipline students in circumstances like those presented here.”
“Courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means,” he wrote.
