Joseph Perry, Esq.
SCOTUS Sides with Cheerleader in Most Significant Student Free Speech Ruling in Nearly 50 Years
The Supreme Court of the United States ruled in an 8-1 opinion that Mahanoy Area School District’s suspension of student Brandi Levy from the cheerleading team for posting vulgar language and gestures critical of the school on Snapchat off-campus outside school hours violated the First Amendment.
The case began in 2017 when Levy, a freshman, didn‘t make the varsity cheerleading team. At a convenience store, Levy posted to Snapchat a photo in which she had her middle finger raised, with a caption “Fuck school fuck softball fuck cheer fuck everything.” Levy’s post quickly came to the attention of the team and coaches. The school suspended her from the JV cheerleading team for one year. Her family later sued the school, claiming the suspension violated Levy‘s First Amendment right to freedom of speech. The district court held in favor of Levy, as did the Third Circuit. The Third Circuit established a categorical rule that banned any discipline for speech off-campus. Mahanoy Area petitioned SCOTUS.
Although SCOTUS didn’t agree with the Third Circuit’s reasoning, it affirmed its ruling that the suspension violated the First Amendment. SCOTUS stopped short of establishing a categorical rule like the Third Circuit and stated that there are certain type of speech off-campus that could be disciplined by a school, such as bullying or threatening violence of a student or teacher, among others. SCOTUS mentioned three factors that should deter courts from establishing a categorical rule that schools should be able to supervise students’ off-campus speech:
A student’s parents should generally be responsible for a student’s off-campus speech.
Any regulation of off-campus speech would cover virtually everything that a student says or does outside of school.
A school has an interest in protecting its students‘ unpopular speech and ideas.
Ultimately, SCOTUS held that Levy’s critique of her cheerleading team, her coaches, and her school was protected by the First Amendment. The court reasoned that if Levy were an adult her speech would be protected. In addition, the Snap was posted on a weekend off-campus and didn’t cause a substantial disruption to justify her suspension.