SCOTUS To Hear Arguments In Free Speech Case Involving A Former High School Cheerleader

April 27, 2021

By a Biometrica staffer

The Supreme Court of the United States (SCOTUS) will hear oral arguments on April 28 in a case involving a former high school cheerleader, which is expected to have major implications on the way schools can view and punish students for “disruptive” speech. It is even expected to lead to a landmark ruling on the limits of free speech, an Insider report says.

In 2017, two days after Mahanoy Area High School in Pennsylvania held its cheerleading tryouts, Brandi Levy — then a 14-year-old ninth-grader who missed out on making the team — was still fuming. A younger girl had been picked, and Levy was relegated to the junior varsity cheer squad. That Saturday afternoon, Levy pulled out her cellphone and, along with a friend, raised her middle finger to the camera. When she did that, she was not standing on school grounds, but in the Cocoa Hut convenience store in Mahanoy City in the state’s coal country, a Reuters report says.

She is said to have posted that photo to Snapchat, with this caption: “F— school, f— softball, f— cheer, f— everything,” according to the American Civil Liberties Union (ACLU). The image went to 250 friends before it was automatically deleted 24 hours later. But someone took a screenshot of it and showed it to the daughter of one of the cheerleading coaches. Levy then received a one-year suspension from the team. Her Snapchat post was said to have violated a team rule on avoiding  “foul language and inappropriate gestures” and “any negative information regarding cheerleading, cheerleaders, or coaches placed on the Internet,” a Washington Post article says.

Levy and her parents sued the school district with the backing of the ACLU, accusing school officials of violating her First Amendment right to free speech. “If they would have just taken her aside and said, ‘Watch; be careful.’ But the action they took, I think reached above and beyond where they should be,” said Larry Levy, Brandi’s father, according to a report by ABC News. A district judge agreed that the suspension violated the First Amendment, and ordered that Levy be reinstated to the cheerleading team, according to the Insider report. Nine justices are due to hear arguments on whether this disciplinary act by a public school – a government institution – violated the U.S. Constitution’s First Amendment guarantee of freedom of speech in an appeal from the school. Judges have ruled in favor of Levy in two lower federal courts and an appeals court already. SCOTUS is due to rule on the case by end of June, according to the Reuters report.

The punishment felt instinctively wrong at the time for Levy, who is now 18, and a college student studying accounting. “I was thinking through my head that was unfair, like how could I be punished for something so small? And I didn’t do it in school, so I was questioning why,” Levy said in an interview, the Reuters report says. “I shouldn’t have to be afraid to express myself and I should be able to do it how I want to without being punished by anybody. What I said, it wasn’t targeting, it wasn’t bullying, harassment, or anything like that.”

The Philadelphia-based 3rd U.S. Circuit Court of Appeals sided with Levy, finding that the First Amendment bars public school officials from regulating off-campus speech. The district then appealed to the Supreme Court. Under a 1969 Supreme Court precedent, public schools may punish student speech that would “substantially disrupt” the school community, according to several news reports. The 1969 landmark ruling in Tinker v. Des Moines said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Levy’s case will determine whether this authority extends beyond the gates of the school.

Policing students’ speech outside school could have “chilling effects on free speech. Young people need to have some place in their lives where they have full free speech rights to blow off steam or express their views on politics, religion, or other social issues without worrying their schools will be monitoring everything they say, 24/7,” Witold “Vic” Walczak, legal director of the ACLU of Pennsylvania, said in a statement to Insider.

The Mahanoy School District, however, has said in court documents that the appellate decision threatens to handcuff coaches, principals and teachers nationwide, according to the ABC News report. “The First Amendment is not a territorial straitjacket that forces schools to ignore speech, that disrupts the school environment. Coaches and school administrators, not federal courts, should decide whether the coach can bench someone or ask a player to apologize to teammates. The First Amendment is not a tool for micromanaging school determinations,” the school district wrote in its brief to SCOTUS.

“This case is so important because it has implications, not just for school leaders in Pennsylvania, but across the nation to be able to provide for the safety and welfare of students in their schools … Schools must be able to discipline students for inappropriate conduct online if they would clearly be disciplined for the same conduct offline,” said Paul Healy, executive director of the Pennsylvania Principals Association, which is backing the Mahanoy Area School District in the case according to the ABC News report.