Law & the Courts

Supreme Court Rules for Cheerleader Penalized by School for Profane Social-Media Tirade

The Supreme Court building in Washington, D.C., June 17, 2021. (Jonathan Ernst/Reuters)

The Supreme Court ruled Wednesday that a Pennsylvania school district infringed upon a student’s right to free speech by penalizing her for expressing a profanity-laced social-media message off school premises.

Justice Clarence Thomas dissented from the eight-justice majority. Justice Stephen Breyer penned the majority opinion, stating that “It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

As established by precedent, students “do not shed their constitutional rights to freedom of speech or expression even ‘at the school house gate,” Breyer affirmed.

Brandi Levy, a Pennsylvania high school student, frustrated with not qualifying for her school’s varsity cheerleading team, sent a Snapchat message to about 250 people filled with swear words. After another student screen-shotted the image and presented it to the coach, the school took disciplinary action against Levy by barring her from the squad, in order to “avoid chaos” and preserve a “teamlike environment.”

The photo depicted Levy and a friend with their middle fingers in the air as well as a chain of curse words referring to her situation.

“F–k school f–k softball f–k cheer f–k everything,” Levy wrote in 2017.

Levy filed a lawsuit against the school district, claiming it violated her first amendment liberties. A three-judge bench at the United States Court of Appeals for the Third Circuit in Philadelphia handed her a win, arguing that public schools cannot punish students for speech outside school grounds. However, disruptive speech, such as words inciting violence or unrest, can be prohibited with threat of penalty if on campus, the court said.

While the judges ruled in Levy’s favor, their reasoning diverged on whether schools can crack down on disruptive speech off school grounds that could potentially interfere with school activities on campus, such as cyberbullying and racist threats.

Judge Thomas L. Ambro wrote in a concurring opinion that not all off-campus speech should be immune from oversight and discipline. He said that the First Amendment protected Levy’s virtual message, however, because it did not disrupt the school’s orderly conduct, despite the cheerleading coach implying that it could sow “chaos.”

Justice Breyer, while siding with Levy, suggested that the court recognizes that there are certain scenarios where the First Amendment can be limited for students.

“We have also made clear that courts must apply the First Amendment in light of the special characteristics of the school environment,” he said.

Justice Thomas, in his dissent, contended that by being a current athletics participant, Levy’s words could have caused damage to the school, justifying the imposition of a penalty as a deterrent.

He said that students like the former cheerleader, “who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.”

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