The Supreme Court on Wednesday ruled that a Pennsylvania high school violated the First Amendment rights of a cheerleader by punishing her for using vulgar language that criticized the school on social media.
The 8-1 opinion upheld lower court rulings against Mahanoy Area High School’s decision to suspend then-student Brandi Levy from her junior varsity cheerleading squad over two Snapchat posts she sent while off school grounds.
The justices had weighed whether a 1969 court decision, which held that public schools have the ability to regulate certain speech, applied in this case, when the speech had occurred off campus.
The decision Wednesday said “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.”
“The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus,” because “America’s public schools are the nurseries of democracy,” wrote Justice Stephen Breyer in the majority opinion.
Justice Clarence Thomas, who turned 73 on Wednesday, dissented.
Levy, whose name is abbreviated “B.L.” in the case, as a high school sophomore in 2017 failed to make her school’s varsity cheerleading team. While at a Cocoa Hut convenience store over the weekend following her rejection, she posted two messages on Snapchat venting her frustration.
“F— school f— softball f— cheer f— everything,” she wrote in the first Snap, which showed an image of Levy and a friend with their middle fingers raised.
The second image included a caption, which read, “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?” That post also showed an upside-down smiley-face emoji.
The messages were flagged to the school’s cheerleading coaches and its principal, who determined they violated the rules and moved to suspend Levy from the squad for the upcoming year.
The Supreme Court’s opinion noted that the 3rd Circuit Appeals Court had ruled for Levy by reasoning that the 1969 case, Tinker v. Des Moines Independent Community School District, “did not apply because schools had no special license to regulate student speech occurring off campus.”
But the Supreme Court on Wednesday did not endorse that view.
Instead, it found that, “While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”
Breyer wrote that there were three features that distinguish a school’s ability to regulate off-campus speech versus speech made on school grounds.
The first feature, according to the court, is that a school rarely stands “in loco parentis” — in place of parents — when a student is off campus.
His second feature is that schools have a “heavy burden” to justify regulating speech off campus, since they otherwise would technically be able to intervene in what a student says during the full 24-hour day.
The third feature, Breyer wrote, is that as “nurseries of democracy,” schools should have an interest in protecting unpopular expression, “especially when the expression takes place off campus.”
Thomas, in his lone dissent, wrote that “the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media.”
Thomas explained that since speech made through social media can be seen and shared on campus, “it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.”
He also wrote that the majority failed to explain why it breaks from a prior rule that schools can regulate off-campus speech “so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.”
The “foundation” of the majority’s ruling “is untethered from anything stable,” Thomas wrote, “and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.”