Supreme Court backs punished cheerleader
Case centered on teen’s profane off-campus post
WASHINGTON – The Supreme Court on Wednesday sided with a former cheerleader who excoriated her school in a profanity-laced post on social media, holding that the punishment of her off-campus speech violated the First Amendment.
But the 8-1 ruling left unresolved the broader question of when schools may regulate off-campus speech, and when such punishment is off limits.
“It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein,” Associate Justice Stephen Breyer wrote for the majority. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
Associate Justice Clarence Thomas dissented.
When Brandi Levy, who was 14 at the time, failed to make the varsity cheer team in 2017, she and one of her friends posted a vulgar message on Snapchat, exhorting her followers to “(Expletive) school (expletive) softball (expletive) cheer (expletive) everything.” The message made it back to her coaches, who cut her from the JV squad. After appealing to school authorities, her parents sued the school district in federal court.
Levy’s attorneys at the American Civil Liberties Union argued that allowing principals to punish students for their off-campus speech, including on social media, would give schools far too much power to police innocuous interactions with their friends. But school ofBreyer ficials said they need to be able to discipline bullying and cheating that can begin off-campus or online before working its way into the school building.
Several of the justices said during oral arguments that they were wary of setting a hard-and-fast standard for when schools could regulate off-campus speech, and that hesitancy was reflected in the opinion. The court held that schools can sometimes punish a student for something they say at home, but that their power to do so was more limited than at school.
“The school’s regulatory interests remain significant in some off-campus circumstances,” Breyer wrote. “Thus, 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.”
said the court would leave that question to “future cases.”
Thomas took issue with that approach in his dissent. Thomas asserted that historical factors suggested that schools could regulate off-campus speech if it could harm the school, its faculty or other students. Thomas said he believes that standard was met in Levy’s case.
“The court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the court’s opinion today means,” Thomas wrote.
The standard for on-campus speech is more clear. A landmark 1969 Supreme Court decision, Tinker v. Des Moines, reaffirmed students’ First Amendment rights at school. That case involved a group of students who wore black armbands to protest the war in Vietnam.