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Cursing Cheerleader Wins at Supreme Court, but Schools Retain Ability to Punish Certain Off-Campus Speech

Cursing Cheerleader Wins at Supreme Court, but Schools Retain Ability to Punish Certain Off-Campus Speech

In the colorfully known “cursing cheerleader” case, the U.S. Supreme Court found a student’s school violated her First Amendment rights. In an 8-1 decision authored by Justice Breyer and decided Wednesday, June 23, 2021, the Supreme Court found that Mahanoy Area School District violated Brandi Levy’s First Amendment rights when it suspended her for posting inflammatory posts on social media. But school districts and authorities can still take some heart from the decision, since the Court found that while Levy’s rights were violated in this instance, there will nonetheless be circumstances where schools retain the ability to discipline their students’ off-campus speech.

The case began when Levy—the titular B.L.—unsuccessfully tried out for her high school’s varsity cheerleading team. Upon learning she was not selected, the frustrated teenager vented her feelings on Snapchat, the social media app that allows users to take photographs (or “snaps”) that disappear after a certain amount of time and are only viewable by certain people. Levy’s snap, taken at an off-campus convenience store outside school hours, was a post of herself and a friend, middle fingers raised, along with a caption stating “F*** school f*** softball f*** cheer f*** everything.” She later posted a second snap again criticizing the choice to omit her from the varsity squad.

Despite only being visible to Levy’s approximately 250 Snapchat friends for 24 hours, the snaps were eventually shown to Levy’s cheerleading coaches. There was some evidence that the offending snaps upset other cheerleaders, and that at least one class taught by one of the cheerleading coaches was mildly disrupted by questions about the snaps. The coaches decided to suspend Levy from the junior varsity cheerleading squad, of which Levy was a member, for the upcoming year. Levy appealed to the school’s athletic director, principal, superintendent, and school board, but all sided with her coaches in affirming her suspension. Levy next turned to federal court.

The district court sided with Levy and granted a temporary restraining order and preliminary injunction ordering the school reinstate her. On appeal, the Third Circuit affirmed the district court’s conclusion. In so doing, the appellate court found that the Tinker “substantial disruption” test—which holds that public school officials can regulate their students’ speech if those expressions of opinion would “materially and substantially interfere” with school operations[1]—does not apply to off-campus speech, which it defined as speech occurring outside school-owned, -operated, or -supervised channels, and is not reasonably seen as bearing the school’s imprimatur. The school district then filed a petition for certiorari, which the Supreme Court granted.

In its decision, the Court reiterated Tinker’s bedrock holding that students “do not ‘shed their constitutional rights to freedom of speech or expression,’ even ‘at the school house gate.’”[2] However, the Court also reinforced that courts must be mindful of the “special characteristics of the school environment.”[3] “One such characteristic . . . is the fact that schools at times stand in loco parentis, i.e., in the place of parents.”[4]

The Court rejected the Third Circuit’s finding that the special characteristics that give schools the authority to regulate student speech vanish when a school regulates speech that occurs off campus. Rather, the Court found “[t]he school’s regulatory interests remain significant in some off-campus circumstances.”[5] The Court posited multiple scenarios where the school would retain an interest in regulating off-campus speech, such as instances of serious or severe bullying or harassment targeting particular individuals, threats aimed at students or teachers, a failure to follow school rules involving online or computer-based activities, or instances where a school’s computer security may have been breached.

In so finding, the Court wrote the Third Circuit’s rule “basically, if not entirely, would deny the off-campus applicability of Tinker’s highly general statement about the nature of a school’s special interests.”[6] “[G]iven the advent of computer-based learning,” the Court made clear it was hesitant to “determine precisely which of many school-related off-campus activities belong on such a list.”[7] Thus, the Court declined to “set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.”[8]

The Court, did, however, mention three features of off-campus speech where schools’ ability to regulate it will be diminished. First, for speech that is geographically off-campus, the school will rarely stand in loco parentis, and thus, it will generally be to the student’s parents to punish such speech. Second, from the student’s perspective, regulation of off-campus speech, combined with regulation of on-campus speech, effectively means all their speech is subject to regulation. Therefore, courts must be skeptical of a school’s efforts to regulate off-campus speech in order to prevent a chilling effect and, when it comes to political or religious speech, schools will have a heavy burden to justify intervention. Third, schools have an interest in protecting unpopular expressions of speech—especially when it takes place off-campus—and that unpopular ideas deserve protection since popular ideas need less protection.

The Court ended its analysis by “leav[ing] for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”[9] The Court then turned to Levy’s speech at issue. It dismissed the vulgarity of Levy’s posts, noting that they did not amount to fighting words and that, if she were an adult, such speech would be protected, curses or not. Justice Breyer also focused on the factors that diminished the school’s authority here: (1) the location of the speech—off-campus, outside of school hours; (2) the manner of Levy’s speech—she did not identify the school or target any particular member of the school community; and (3) how Levy communicated the speech—she used her personal cellphone, transmitting it to a private audience of her friends. Justice Breyer contrasted this with the school’s purported interests in punishing Levy: (1) its interest in teaching good manners—the Court found this was weakened by the fact Levy spoke outside the school on her own time and under circumstances where the school did not stand in loco parentis; (2) the school’s interest in preventing disruption—the Court found that, per Tinker, here there was no evidence of a “substantial disruption,” and what disruption that did exist was minimal; and (3) the school’s interest in maintaining morale on the cheerleading squad—the Court found that aside from one coach’s testimony that Levy’s posts created undesirable negativity that could impact other students, there was little else to suggest any decline in team morale.

Taken together, the Court found that Levy’s speech qualified for First Amendment protection and therefore the school district’s actions violated this right. Justice Breyer concluded by observing “[i]t might be tempting to dismiss [Levy’s] words as unworthy of the robust First Amendment protections discussed [in the opinion], . . . [but] sometimes it is necessary to protect the superfluous in order to preserve the necessary.”[10] Justice Alito filed a concurring opinion joined by Justice Gorsuch, joining the Court’s opinion but writing separately to set forth the framework which he believed cases similar to this one should be analyzed.[11] Justice Thomas dissented, arguing that because historically schools could discipline behavior such as Levy’s, the Court should have upheld her suspension.[12]

While the Court ultimately found in favor of Levy, school administrators will find much to appreciate in the Court’s opinion. Indeed, Justice Breyer took pains to note that, given the facts before it, the Court was declining to draw any kind of broad rule regarding regulation of off-campus speech. Further, the Court pointed out specific examples of what kind of off-campus speech would likely fall within the school’s authority, such as bullying, harassing, or threatening speech, or speech that threatened school figures or its security. The Court contrasted this with the kinds of off-campus speech that likely would not fall within the school’s authority: unpopular expressions of speech or speech that is geographically off-campus where any punishment would generally fall to the student’s parents; the Court also reminded authorities that they face a high bar in justifying unnecessarily restrictive off-campus regulations, especially as relates to religious or political speech. And by leaving it to future courts and cases to determine how these factors will play out, the Court signaled it was not eager to draw any bright line rule when it comes to extending Tinker to off-campus speech. Thus, school administrators can take solace in knowing that, depending on the context, they still retain the ability to discipline offending off-campus speech.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969).

[2] Mahanoy Area Sch. Dist. v. B.L., No. 20-255, 2021 WL 2557069, at *4 (June 23, 2021) (quoting Tinker, 393 U.S. at 506).

[3] Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[4] Id. (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986)).

[5] Id.

[6] Id. *5.

[7] Id.

[8] Id.

[9] Id. at *6.

[10] Id. at *7.

[11] Id. at *7–15.

[12] Id. *15–20.