Supreme Court rules for high school cheerleader punished for expletive-laden Snapchat message

In May 2017, a 14-year-old Pennsylvania high school student posted a vulgar Snapchat message expressing frustration over failing to make the varsity cheerleading squad. Though the message was sent from a local convenience store over the weekend, school administrators suspended the student from the junior varsity cheerleading team for a year “to avoid chaos” and maintain a “teamlike environment.” The high schooler sued the school district in federal court, eventually securing a sweeping victory from a three-judge panel of the U.S. Court of Appeals for the Third Circuit, which said the First Amendment categorically barred public schools from disciplining students for speech uttered outside school grounds. In January 2021, the Supreme Court agreed to review the case; it ruled in the student’s favor on June 23, but on narrower grounds.

Key Players

Sitting in the Cocoa Hut, a local convenience store, on a Saturday, Brandi Levy uploaded a photo of herself and a friend with their middle fingers raised and the caption, “Fuck school fuck softball fuck cheer fuck everything.” The then-14-year-old posted a second blank image with the message, “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else? [upside down smiley face emoji].” A fellow student took screenshots of Levy’s posts, which were intended to reach her 250 Snapchat friends for a period of 24 hours, and shared them with a cheerleading coach and other members of the cheerleading squad.

The Mahanoy Area School District is a small, rural public school district in Schuylkill County, located in the east-central region of the state. Levy attended the district’s one high school, Mahanoy Area High School. After speaking with the school’s principal, Mahanoy’s cheerleading coaches decided that Levy’s Snapchat stories violated team and school rules against using profanity in connection with extracurricular activities. Though Levy apologized for her posts, the school’s athletic director, principal, superintendent, and school board all affirmed her suspension from the junior varsity cheerleading team.

Further Details

On Sept. 25, 2017, Levy filed suit against the school district alongside her parents in federal district court. The district court sided with Levy, relying on a landmark precedent set by the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District. In that case, which cemented students’ rights to Free Speech in public schools, the court ruled in favor of a group of students who protested U.S. involvement in the Vietnam War by wearing black armbands to school. 

In Tinker, the court famously affirmed that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but still granted school officials considerable freedom to regulate student conduct and expression that would “materially and substantially interfere” with school operations. In the current case, Mahanoy school officials failed to demonstrate that Levy’s Snapchat message disrupted school activity, according to the district court.

When the school appealed this time, the three-judge panel hearing the case for the Philadelphia-based U.S. Court of Appeals for the Third Circuit united in ruling for Levy, but disagreed among themselves about the appropriate rationale for the decision. The two-judge majority broadly curtailed the ability of public schools to punish student expression, holding that speech that occurs “outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur” is exempt from state regulation under the First Amendment. The third judge agreed with the majority’s decision, but only on the grounds that the school had not sufficiently justified disciplining Levy because her speech was not substantially disruptive. Most courts have allowed public schools to discipline students for social media posts so long as they are linked to school activities and threaten to disrupt them,  The New York Times pointed out.

The Mahanoy school district filed a petition for certiorari with the Supreme Court, asking the justices to decide whether Tinker v. Des Moines, “which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.” 

Outcome 

Supreme Court sides with student, but affirms right of schools to regulate some student conduct off campus

On June 23, 2021, the Supreme Court ruled that the school district had violated the First Amendment by suspending Levy, because her Snapchat posts were not materially disruptive.

“To the contrary, [Levy] uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection,” Justice Stephen Breyer wrote for the majority.

Yet, the 8-1 decision did not uphold the Third Circuit’s categorical ban on public schools’ ability to regulate student speech outside of school. Breyer explained that schools’ interests in reaching speech that happens off-campus remains “significant in some … circumstances,” such as bullying, threats against teachers or students, and the completion of school assignments. The court hesitated to establish a clear-cut rule about the extent of the public schools’ jurisdiction over off-campus versus on-campus student speech. 

“We do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent … substantial disruption of learning-related activities or the protection of those who make up a school community,” Breyer wrote.

Instead, the court said, three factors should caution courts against allowing schools to limit what students say off-campus: Parents are better equipped to discipline children away from school; the threat of 24/7 surveillance contradicts Free Speech values; and schools should educate students that unpopular speech merits protection. After all, “America’s public schools are the nurseries of democracy,” as Breyer put it in his opinion. That Levy sent the posts from her personal cellphone off campus on a weekend and steered away from targeting any specific individual, or even naming her school, dampened the high school’s interests in punishing her, the court said. 

Further, the majority opinion said Levy’s speech offered a critique deserving of defense. “Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school — in a word or two, criticism of the rules of a community of which [Levy] forms a part,” Breyer wrote.

In a concurring opinion, Justice Samuel Alito warned that “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.”

Dissenting from the majority, Justice Clarence Thomas said he would have upheld Levy’s suspension. “Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation,” he wrote.

Thomas has long argued that students generally do not have Free Speech rights, according to NPR.

Parties to the case and experts react to the ruling 

Stakeholders on both sides of the dispute expressed satisfaction with the decision — the first time in more than 50 years that a high school student won a Free Speech case in the Supreme Court, NPR reported.

Levy told The New York Times, “the school went too far, and I’m glad that the Supreme Court agrees.”

“I was frustrated, I was 14 years old, and I expressed my frustration the way teenagers do today,” Levy, who is studying accounting  at Bloomsburg University in Pennsylvania and completed her first year in May 2021, said. “Young people need to have the ability to express themselves without worrying about being punished when they get to school.”

David Cole, national legal director for the American Civil Liberties Union, which represented Levy, said the ruling marked a “huge victory for students’ speech rights.” 

“It means that when students leave school every day, they don’t have to carry the schoolhouse on their backs,” Cole told NPR.

Michael Levin, counsel for the school district, also claimed victory, maintaining that the “Supreme Court ruled clearly that school districts had the right under the Constitution to regulate off-campus speech in a wide variety of situations,” according to NPR.

Justin Driver, a law professor at Yale and author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” told The New York Times that “the opinion reaffirms that schools’ authority over the lives of students is not boundless.” Yet, he said, it “offers little in the way of clarity to students, educators or lower-court judges.”