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 statement upheld the lower court rulings against Mahanoy Area High School’s decision to suspend then-student Brandi Levy from her junior cheerleading team over two Snapchat posts she sent off-school.
The judges had weighed whether a 1969 court ruling that gave public schools the ability to regulate certain idioms was applicable in the case if the speech was off-campus.
Wednesday’s ruling stated, “Courts must be more skeptical of a school’s efforts to regulate off-campus language as it may mean the student cannot make that type of speech at all.”
“The school itself has an interest in protecting a student’s unpopular utterance, especially if the utterance is off-campus,” because “America’s public schools are the kindergartens of democracy,” wrote Judge Stephen Breyer in majority opinion.
Judge Clarence Thomas, who turned 73 on Wednesday, disagreed.
Levy, whose name is abbreviated to “BL” in this case, failed to reach her school’s cheerleading team as a sophomore in 2017. While at a Cocoa Hut store the weekend after her rejection, she posted two messages on Snapchat to vent her frustration.
“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, “Love, like me and [another student] I am told that we need a year jv before we go to college, but that is[t] doesn’t matter to others? “This post also featured an upside-down smiley face emoji.
The news was reported to the school’s cheerleading coaches and their principal, who discovered they were breaking the rules and suspending Levy from the roster for the coming year.
The ruling of the Supreme Court found that the 3rd District Court of Appeal had ruled in favor of Levy on the grounds that the Tinker v. Des Moines Independent Community School District of 1969 “was not applicable because schools did not have a special license to regulate student speech 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 are three characteristics that distinguish a school’s ability to regulate off-campus language from 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.”
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 explained 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 could not 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 “basis” of majority decision-making 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. “