In a victory for student speech rights, the Supreme Court on Wednesday ruled that a former cheerleader’s online F-bombs about her school is protected speech under the First Amendment.
But in an 8-1 vote, the court also declared that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study. But the justices concluded that a few swearwords posted online off school grounds, as in this case, did not rise to the definition of disruptive.
At issue in the case was a series of F-bombs issued in 2017 on Snapchat by Brandi Levy, then a 14-year-old cheerleader who failed to win a promotion from the junior varsity to the varsity cheerleading team at her Pennsylvania school.
“I was really upset and frustrated at everything,” she said in an interview with NPR in April. So she posted a photo of herself and a friend flipping the bird to the camera, along with a message that said, “F*** the school. … F*** cheer, F*** everything.”
Suspended from the team for what was considered disruptive behavior, Levy — and her parents — went to court. They argued that the school had no right to punish her for off-campus speech, whether it was posted online while away from school or spoken out loud at a Starbucks across the street from school.
A federal appeals court agreed with her, declaring that school officials have no authority to punish students for speech that occurs in places unconnected to the campus.
On Wednesday, the Supreme Court ruled for Levy while at the same time declaring that schools may in fact punish some speech, especially if it is harassing, bullying, cheating or otherwise disruptive.
Writing for the majority, Justice Stephen Breyer said that while “public schools may have a special interest in regulating some off-campus student speech,” the justifications offered for punishing Levy’s speech were simply insufficient. “To the contrary,” said Breyer, the speech that Levy uttered “is the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”
Breyer’s decision harkened back to a 1969 case that involved students suspended for wearing black armbands to school to protest the Vietnam War. The court ruled then that students do have free speech rights under the Constitution, as long as the speech is not disruptive to the school.
On Wednesday, the high court reinforced that decision, concluding that while Levy’s post was less than admirable, it did not meet the test of being disruptive. In his majority opinion, Breyer noted that her post did not target any individual, did not even name her school; her comments, he said, were made on her personal cellphone over the weekend, off campus and to her friends.
Breyer went on to establish some general guardrails for school districts to follow in the future. Parents, not schools, he said, generally have the responsibility for discipling students off campus. Indeed, were the school to have the power to discipline off-campus speech as a general matter, it would mean that everything a student said 24 hours a day would be subject to punishment by school authorities.
Instead, Breyer said, school authorities have an interest in protecting unpopular student expression, especially when it occurs off campus. After all, he added, “America’s public schools are the nurseries of democracy.”
“It’s a huge victory for students’ speech rights,” said David Cole, legal director for the American Civil Liberties Union, which represented Levy. “It means that when students leave school every day, they don’t have to carry the schoolhouse on their backs.”
But Michael Levin, counsel for Pennsylvania’s Mahanoy Area School District, also claimed victory, contending that schools could easily operate under these rules. “The Supreme Court ruled clearly that school districts had the right under the Constitution to regulate off-campus speech in a wide variety of situations,” he said.
Joie Green, superintendent for the Mahanoy Area School District, however, was not so sure, noting that in this case Levy had signed a contract to follow the team rules, and she didn’t. “All the school did was support the coach’s rules,” Green said. “Where is the line drawn?”
Gregory Garre, the former solicitor general who represented the National School Boards Association in the case, said he saw Wednesday’s decision as a win for both sides — a victory for Levy on the facts of her case but also a clear rejection of the notion that off-campus speech is out of bounds for school discipline.
“The court took a common-sense approach here,” Garre said. “Just because speech originates off campus, particularly in a special context of social media, doesn’t mean that it can’t substantially disrupt the campus and the classroom.”
Yale law professor Justin Driver, author of The Schoolhouse Gate, a book about these issues, called the decision incredibly significant.
“It’s the first time in more than 50 years that a public school student has prevailed in a free speech case at the Supreme Court,” Driver pointed out. “Public school students should be dancing in the streets.”
“At the same time,” Driver said, “Justice Breyer’s opinion for the court left many significant questions unanswered. And this suggests that the court is going to have another off-campus student speech case somewhere down the line.”
But Garre noted that Breyer, whose future on the court is the subject of much scrutiny, still wrote for a near-unanimous court. “This well could end up being one of Justice Breyer’s more significant opinions, whether he ends up stepping down this year or in future years,” Garre said.
In a concurring opinion, Justice Samuel Alito wrote: “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”
In a statement, the National School Boards Association said that “while the school district lost on the facts of this particular case, it represents a win for schools, as well as students, who can still be protected from off-campus student speech that bullies, harasses, threatens, disrupts, or meets other circumstances outlined by the Court.”
In a dissent, Justice Clarence Thomas wrote that the school was right to suspend Levy because students like her “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.”
Thomas has long taken the position that students generally do not have free speech rights.