Supreme Court Cheerleader Case Could Decide if Schools Can Consider Off-Campus Speech

Supreme Court Cheerleader Case Could Decide if Schools Can Consider Off-Campus Speech Supreme Court Cheerleader Case Could Decide if Schools Can Consider Off-Campus Speech Detail view of pom poms during the first half of the Class 4A State Championship high school basketball game between Bishop Kelly and Rigby in Nampa, Idaho, on Saturday, March 7, 2015. (AP Photo/Otto Kitsinger)

By Theodore Bunker | Tuesday, 20 April 2021 10:40 AM

A Pennsylvania cheerleader’s legal case against her removal from her school's cheer squad over a profanity-laced Snapchat video could lead the Supreme Court to rule on whether schools can discipline students for statements made off-campus.

Scranton-area sophomore Brandi Levy was removed from the JV cheer squad after the coaches saw a screenshot of her Snapchat, where she was giving a middle finger to the camera with the caption: "F— school f— softball f— cheer f— everything." Levy made the Snapchat while at a convenience store off campus, a fact that is now at the center of the case Mahonoy Area School District v. B.L., which the Supreme Court is set to consider later this month.

"In our cancel culture, religious students are too often targeted for expressing their deeply held beliefs," Alliance for Defending Freedom senior counsel John Bursch told the Washington Free Beacon. "The Court should make clear that the First Amendment does not allow schools to censor students’ speech anytime and anywhere."

The Court’s 1969 decision in Tinker v. Des Moines Independent Community School District protected students who wore black armbands to protest the Vietnam War, and held that the free speech of students is protected as long as it is not disrupting school. Now the Court may decide whether this protection applies to off-campus speech as well.

Levy's coaches claimed that her Snapchat, which was visible to about 250 friends and classmates, had disrupted the cheer team and harmed the school. Many lower courts have sided with schools that discipline students for off-campus comments or actions.

However, the 3rd U.S. Circuit Court of Appeals noted in its decision siding with Levy that she "created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school."

Writing for the majority, U.S. Circuit Judge Cheryl Ann Krause noted that although the school argued that Levy waived her free speech rights when she agreed to the team's "Respect Rule," "that would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large."

Even the dissenting opinion notes that the "Snap is not close to the line of student speech that schools may regulate."

"Communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects."

Levy told Education Week: "I appreciate what I’m doing to help other students and other young people just like me to have their rights, as well. I think it’s a good thing what I’m doing."

"I think it is very important for the Supreme Court to set some guidance, not only for school administrators, but also for kids," said Witold J. Walczak, legal director of the American Civil Liberties Union of Pennsylvania and the attorney representing Levy.

Lawyers for the Cato Institute, a libertarian organization, wrote in legal papers to support Levy: "Our culture currently is experiencing a dangerous trend of punishing individuals for speech on social media with the intent and effect of stifling ideas. Empowering school administrators to punish students for anytime-anyplace speech creates an incentive for students, parents, and staff to engage in informant-style behavior that is anathema to American values."