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Supreme Court gives cheerleader victory in school free speech case

The 8-1 ruling said public schools have no general power to punish students for what they say off campus.

WASHINGTON — The nation's public schools have no general power to punish students for what they say off campus, the Supreme Court said Wednesday.

The 8-1 ruling broadened First Amendment protections in an era when school children are in nearly constant contact with one another through social media and text messages. The decision did not protect all off-campus expression, but the court suggested that the exceptions, to be worked out in future cases, would be limited.

"The leeway the First Amendment grants to schools," in light of the special characteristics of off-campus expression, "is diminished," wrote Justice Stephen Breyer.

It was a victory for Brandi Levy, who was a ninth grader at a Pennsylvania high school when she was punished for a message she posted to Snapchat one Saturday at a convenience store after discovering that she didn't make the varsity cheerleading team and would remain on the junior varsity squad.

Brandi Levy, a former cheerleader at Mahanoy Area High School in Mahanoy City, Pa.Danna Singer / ACLU via Reuters

She used a vulgar four-letter word to write, "f--- school f--- softball f--- cheer f--- everything." When the message was discovered by one of the school's cheerleading coaches, Brandi was suspended from the junior varsity team for her entire sophomore year.

She and her parents sued, and a federal appeals court ruled that because her message was posted off campus, she was beyond the reach of school authorities and could not be punished. The Supreme Court did not go that far.

Wednesday’s ruling brought the court's earlier decision on student expression into the internet age. In 1969, the court said students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Student expression cannot be regulated, that ruling said, unless it would substantially disrupt the work and discipline of the school.

Defending Levy's punishment, the Mahanoy Area School District said the spread of smartphones and social media, and the need for remote learning during the pandemic blurred the line between on campus and off. No matter where a student's expression originates, schools should be able to discipline students when a message is directed at the school and causes disruption, the district said.

The Biden administration sided with the school. The Justice Department said the Supreme Court's earlier cases on school speech dealt with the effects of a message on other students and school activities, not with the time when they were sent or where they came from.

But the American Civil Liberties Union of Pennsylvania, representing the Levys, said young people "have the right to find their voices without being unduly chilled." Off campus, "government may not penalize speech because listeners find it offensive or even disagreeable," it said.

“Protecting young people’s free speech rights when they are outside of school is vital, and this is a huge victory for the free speech rights of millions of students who attend our nation’s public schools,” said David Cole, legal director of the ACLU, who argued the case before the justices.

Now a college student, Levy said she sent her message to blow off steam.

"I was a 14-year-old kid expressing my feelings, and that's how kids do it, over social media," she said.