Cautious Court Signals Support for Cussin’ Cheerleader in School Speech Case

Justices seem wary of making broader statements on student free speech

Kevin Daley • April 28, 2021 5:30 pm

The Supreme Court on Wednesday seemed to sympathize with a former high school cheerleader who was punished by coaches for using profanity on Snapchat, but remained leery of saying too much about student free speech rights.

A federal appeals court sided with the cheerleader and said schools cannot punish students for speech that happens off campus. The Court would not go that during Wednesday’s two-hour arguments, as many of the justices worried about striking the right balance between free speech and a school’s need to stop harassment, bullying, and general disruptions.

“I’m frightened to death of writing a standard,” Justice Stephen Breyer told David Cole, the ACLU lawyer who represented the cheerleader.

The ginger approach to Wednesday’s case is a sign that the Court is not in a rush to redefine protected student speech in the digital age. The High Court said in a 1969 case that school administrators have some leeway to police student speech, but it has said little about the First Amendment rights of students since then. The rise of cyberbullying and woke orthodoxy have upended the legal analysis, such that student speech will occupy the Court’s attention for years to come.

Brandi Levy was a high school sophomore at a Scranton-area school in 2017 when she learned she would spend a second year on the junior varsity cheerleading squad. She posted a selfie on Snapchat venting her frustration, visible to about 250 friends and classmates.

“F— school f— softball f— cheer f— everything,” the caption read. Levy’s coaches removed her from the squad for the rest of the academic year. They said Levy’s message undermined the team and tarnished the school’s reputation.

Justice Brett Kavanaugh, who coaches Catholic school basketball, sympathized with Levy and suggested the punishment was heavy-handed. He mentioned Michael Jordan’s 2009 Hall of Fame induction speech, in which Jordan recounted the frustration he felt when he, like Levy, was denied a spot on a varsity team as a high school sophomore.

Kavanaugh was quick to add that coaches need a freer hand to discipline students, as players have to work together and follow instructions to be successful. Other members of the Court, such as Justice Clarence Thomas, seemed to agree.

But the certainty ended there. Kavanaugh suggested that, for the moment, the Court could simply say extracurriculars are unique and that the appeals court was wrong to categorically ban punishments for off-campus speech.

Justices Breyer, Samuel Alito, and Neil Gorsuch also seemed inclined to reach a narrow decision that broke little ground.

The Biden administration backed the Scranton-area school district in Levy’s case. In legal papers, the Justice Department said schools need latitude to stop bullying and harassment or protect against threats. That means they can regulate speech if it’s related to the school and likely to cause a substantial disruption.

In exchanges with Justice Elena Kagan, Justice Department lawyer Malcolm Stewart said a school could punish students who advocate for more minority authors in a class syllabus or warn gay students off a particular school because of homophobia.

Several members of the Court were uncomfortable giving administrators broad power to regulate speech. Alito and Chief Justice John Roberts asked a battery of questions about students speaking on political topics with a loose connection to school, such as which pronouns one ought to use when dealing with a transgender person.

“If schools are going to have any authority … outside of school, there has to be a clear rule. That’s what I’m looking for,” Alito told Lisa Blatt, who represented the Scranton-area school district Wednesday.

Cole, the lawyer for Levy, likewise emphasized the need for clear limits on school power. Giving school officials the green light to punish students for disruptive, off-campus expression will “upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go,” he told the Court.

None of the justices seemed satisfied that clear limits had been proposed, meaning the issue will linger for a future case.

A decision in the case No. 20-255 Mahanoy Area School District v. B.L. is expected this summer.