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Supreme Court rules on Pennsylvania cheerleaders in school free speech case

Microphones in front of the US Supreme Court building in Washington, D.C., the United States, on Tuesday, November 10, 2020.

Stefani Reynolds | Bloomberg | Getty Images

The Supreme Court ruled Wednesday that a Pennsylvania high school violated the First Amendment rights of a cheerleader by punishing her for using vulgar language criticized the school on social media.

The 8-1 opinion upheld the lower court rulings of Mahanoy Area High School's decision to suspend then-student Brandi Levy from her junior varsity cheerleading squad for a year via two Snapchat posts she made sent outside the school premises.

The judges had weighed whether a 1969 Supreme Court ruling that gave public schools the ability to regulate certain idioms was applicable to a case where the speech was off campus.

In its ruling on Wednesday, the Supreme Court said, "Courts must be more skeptical of a school's efforts to regulate off-campus language, as it may mean the student cannot make this type of speech at all."

"The school itself has an interest in protecting a student's unpopular expression, especially when the expression is off-campus," because "America's public schools are the kindergartens of democracy," wrote Judge Stephen Breyer, who wrote the majority opinion.

Judge Clarence Thomas, who turned 73 on Wednesday, disagreed.

Levy said in a statement, "The school has gone too far and I'm glad the Supreme Court approves."

“I was frustrated, I was 14 years old and I expressed my frustration the way teenagers do today. Young people need the ability to express themselves without worrying about being punished in school, ”Levy said.

"I never imagined that a simple snap would turn into a Supreme Court case, but I'm proud that my family and I stood up for the rights of millions of public school students."

Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pennsylvania, poses in an undated photo taken by the American Civil Liberties Union.

Danna Singer / ACLU | ABOUT REUTERS

Levy, whose name begins with "B.L." has been abbreviated. on court records when a high school student failed to reach her school's cheerleading team in May 2017 but won a spot on the junior varsity roster.

While at a Cocoa Hut convenience store, she posted two messages on Snapchat to vent her frustration at missing out on college and not getting the position she'd been on the softball team the school wanted.

"F — school f — softball f — cheer f — everything," she wrote in the first snap, which showed a picture of Levy and a friend with their middle fingers raised.

The second picture had a caption that read, "I love the way I and (another student) are told that we need a year of jv before we go to college, but that doesn't matter to others?" This post also featured an upside down smiley face emoji.

The news was reported to the cheerleading coaches and principal at Mahanoy City School, who found they were breaking the rules and suspending Levy from the roster for the coming year.

The Supreme Court opinion found that the 3rd District Court of Appeals ruled in favor of Levy on the grounds that the 1969 decision – Tinker v Des Moines Independent Community School District – “did not apply because the schools did not have a special license to regulate student speaking off campus. "

But the Supreme Court on Wednesday disagreed with that view.

Instead, it noted that "Although public schools may have a particular interest in regulating some students' off-campus speech, the particular interests offered by the school are insufficient to reflect BL's interest in freedom of expression in this case overcome."

Breyer wrote that there were three characteristics of the language of off-campus students that influenced a school's ability to regulate it, as opposed to on-campus language.

The first characteristic, according to the court, is that a school is rarely “in loco parentis” – instead of the parents – when a student is off campus.

Its second characteristic is that schools have a "heavy burden" justifying off-campus language rules, otherwise they would be technically able to intervene in what a student is saying throughout the 24-hour day.

The third characteristic, wrote Breyer, is that schools, as "kindergartens of democracy", should have an interest in protecting unpopular expressions of opinion, "especially when the expression of opinion takes place off campus".

David Cole, the American Civil Liberties Union legal director who campaigned in the Supreme Court on Levy's case, said, “Protecting the freedom of young people expression outside of school is vital, and this is a great victory for free speech of millions of students attending our country's public schools. "

"The school has asked the court in this case to punish speeches it considers 'disruptive', regardless of where it occurs," Cole said in a statement. "If the court had accepted this argument, it would have jeopardized all manner of speech young people made, including what they said about politics, school operations and general teenage frustrations."

"The message of this judgment is clear – freedom of speech is for everyone, and that includes public school students," said Cole.

But Thomas, in his solitary disagreement, wrote that "the majority fail to consider whether schools will often have more, not less, authority to discipline students who broadcast language on social media."

Thomas stated that since language spoken on social media can be seen and shared on campus, "there is often a greater tendency to harm the school environment than face-to-face conversation off campus."

He also wrote that the majority failed to explain why they were breaking a previous rule that schools can regulate language off campus "as long as it tends to harm the school, its faculty or students, or its programs ".

The "foundation" of majority decision "is independent of anything stable," wrote Thomas, "and courts (and schools) will almost certainly not know what exactly the opinion of the court means today."

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