Cheerleader’s Profane Post Tests Speech Rights at High Court (2)

April 28, 2021, 6:12 PM

U.S. Supreme Court justices struggled with a case over a 14-year-old cheerleader’s profane Snapchat rant, suggesting they will step carefully in deciding how much latitude to give public school officials to discipline students over social-media posts.

Hearing arguments by phone, several justices indicated they were wary of letting schools go too far in regulating what students can say away from campus, while others said they wanted to make sure schools had sufficient tools to fight online bullying and harassment.

And some justices said they were concerned any sort of broad ruling would have unforeseen consequences, given the array of scenarios that confront school officials and the popularity of social media among students. “I’m frightened to death of writing a standard,” Justice Stephen Breyer said.

The case, which could produce the biggest school-speech ruling in a half-century, marks the first time the Supreme Court has considered the intersection of social media and the First Amendment rights of students.

The dispute involves Brandi Levy, who was a freshman at Mahanoy Area High School in rural Pennsylvania when she took to Snapchat to voice her frustration over not making the varsity cheerleading team and being put on the junior varsity for the second straight year. She had also recently failed to get her desired position on a local softball team.

“F--- school f--- softball f--- cheer f--- everything,” she posted, along with a photo of her and a friend raising their middle fingers. The post, which she sent in May 2017 from a local convenience store, went to her 250 Snapchat friends and, as “Snaps” do, disappeared after 24 hours.

The post nonetheless made its way to the school’s cheerleading coaches, who suspended her from the team for her entire sophomore year, saying she had violated team rules.

Michael Jordan

Justice Brett Kavanaugh said the punishment “seems excessive to me,” likening Levy’s situation to that of basketball superstar Michael Jordan, who failed to make his high school varsity team as a sophomore and still chafed at the slight years later.

“She blew off steam like millions of other kids have when they’re disappointed about being cut from the high school team, or not being in the starting lineup, or not being all-league,” said Kavanaugh, who has coached his daughter’s basketball teams.

Lisa Blatt, arguing for the school district, said educators need broad authority to stop bullying, harassment and other online misconduct. “Students shouldn’t be able to place their speech off limits just by stepping off campus,” she said.

But Justice Samuel Alito said he was “really worried” about how courts would implement a decision that said schools could punish speech that takes place outside their grounds.

If schools are to have authority over off-campus speech, “there has to be a clear rule,” Alito said. “That’s what I’m looking for.”

Black Armbands

The Supreme Court said in 1969 that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the court also said officials can punish on-campus speech if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

In that case, Tinker v. Des Moines Independent Community School District, the court said black armbands worn by students to protest the Vietnam War weren’t disruptive.

Levy’s lawyer, David Cole of the American Civil Liberties Union, said young people have a right to be free from censorship when they aren’t in the school environment. He described Tinker as a limited exception to student speech rights and said the court shouldn’t transform it into a “24/7 rule.”

Justice Elena Kagan said Cole was turning Tinker into a “geographic test.”

“It might be that student speech that occurs outside of school is sometimes going to cause fundamental problems, disruption of the school’s learning environment,” Kagan said. “And I guess the question is why we shouldn’t acknowledge that and allow a school to deal with it?”

Kagan asked whether a school could punish boys who created a ranking of the physical appearance of their female classmates or talked about their sexual activities.

Cole said schools could address those sorts of problems with anti-bullying and anti-harassment policies, but couldn’t invoke a “broad-brush, free-floating disruption standard.”

The school district’s approach “would teach students they can never speak candidly with their friends without worrying that a school official will deem their views potentially disruptive and suspend them or otherwise punish them,” he said.

The case, which the court will decide by late June, is Mahanoy Area School District v. B.L., 20-255.

(Updates with comments from Kavanaugh, Kagan, lawyers starting in seventh paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Bill Faries

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

To read more articles log in.

Learn more about a Bloomberg Law subscription.