The Supreme Court on Wednesday will hear a case pitting a foul-mouthed cheerleader against a censorious school administration, with possibly wide-reaching First Amendment implications.
The case came out of a typical high school incident. In May 2017, Brandi Levy, then a sophomore in Pennsylvania, tried out for the varsity cheer squad and failed to make the team. She was disappointed and posted on Snapchat, “F— school f— softball f— cheer f— everything.” She, however, had made the junior varsity cheer squad. When the school caught wind of her social media post, it banned her from cheerleading for a year.
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Levy, who is no longer in high school, responded by taking the issue to the American Civil Liberties Union, which argued that the incident was a First Amendment violation because Levy’s complaint occurred on a Saturday when she was not on campus. The case worked its way up through the federal district and appeals courts, where Levy won, before her school district appealed to the Supreme Court.
When the court hears the case on Wednesday, it will consider a wider scope than Levy’s case. The school district argues that the court’s 1969 decision Tinker v. Des Moines Independent Community School District gives it wide latitude to discipline students enrolled in the district. In that case, the court found that schools can punish students who “substantially disrupt” the school community with their words. Levy’s case will decide if that power extends off-campus.
The school district argued in its briefs that with the widespread use of the internet, the line between where school ends and private life begins has become incredibly blurry. A Snapchat story, although it was posted in a convenience store and not on a school day, could significantly affect people involved in school.
The district used various examples of cyberbullying to illustrate why it should be allowed to intervene when students take to the internet with hostile speech.
“If a student on the weekend uses her private email to blast harassing messages to school email accounts, where did the speech happen?” attorneys for the district wrote, arguing that such speech was within the school’s area of concern.
Lower courts have rejected this argument, finding that Tinker did not justify the school’s actions. The Biden administration, however, sided with the district, arguing that the federal government has a significant interest in “addressing, preventing, and enforcing prohibitions on bullying and harassment of students” and that Levy’s Snapchat story had distressed other students who made the team.
More broadly, the Biden administration argued that public schools should be allowed to police speech that affects the student body, whether it occurs on campus or off.
“Because the task of educating the Nation’s children vests public schools with responsibility to teach students, a school may prohibit student speech that ‘would undermine the school’s basic educational mission.’ … For that reason, a number of constitutional rights apply differently in the school setting,” the administration wrote. “The First Amendment is no exception.”
The ACLU, arguing on behalf of Levy, pushed back, writing that because her post was on Snapchat, where teenagers frequently post short-lived life updates, it does not rise to the sort of scrutiny that the school district imposed.
“Permitting school officials to regulate student expression that occurs on a weekend, off-campus, with no specific connection to the school would severely diminish students’ free-speech rights in the world at large,” lawyers for Levy wrote.
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The court is expected to make a decision by the summer.
