Protecting What’s Necessary
Court makes right call in student speech case
“It might be tempting to dismiss (the student’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.”
So wrote U.S. Supreme Court Associate Justice Stephen Breyer for the 8-1 majority in the case of Brandi Levy.
The Pennsylvania ninth-grader didn’t make the varsity cheerleading squad. Her response was to take a photo of herself and a friend, middle fingers raised, and post it on Snapchat along with a profanity-laced message directed at the school.
Snapchat are supposed to disappear after a day. But if someone takes a screenshot of the post, it can live online forever. That’s what happened. A coach saw the post, and Brandi was suspended from junior varsity cheerleading squad for a year.
The Levy family took the school district to court and won. But the district appealed to the nation’s highest court, where the Levys prevailed again in a decision announced Wednesday.
The key question in the case was just how far a school can go in regulating a student’s off-campus conduct. And the court’s answer was not all that far.
One of the school district’s arguments was that what students do off campus can impact order and discipline on campus. Associate Justice Clarence Thomas, who sided with the district, made a similar point in his dissent.
But the majority made it clear the burden of proof is on a district to show a student’s off-campus speech caused “material and substantial disruption.” Breyer noted that profanity might be unattractive, but it’s not uncommon for students to use it while talking among themselves both on and off campus. If districts could discipline students for swear words, then “every school in the country would be doing nothing but punishing.”
That the court was mostly united in this decision is important and encouraging. Yes, the student’s choice of words was not what most would consider appropriate. We don’t even like such words when they come from adults.
But, as Breyer so properly wrote, “… sometimes it is necessary to protect the superfluous in order to preserve the necessary.”