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Friday, June 25, 2021

Give Me An “F”, Give Me A “U”, Give Me A “C” - A Cheerleader’s Victory

As you may have heard, the Supreme Court of the United States handed down an opinion this week that a cheerleader’s rant on SnapChat after she did not make the varsity squad was speech protected by the First Amendment.

The decision, on a vote of 8 to 1, did not establish a categorical ban on regulating student speech outside of school, citing the need of school systems to be able to deal with issues like bullying and threats.
Instead, it set out factors that courts should assess in weighing the right of administrators to punish speech in nonschool settings, with one important component being whether parents are better suited to handle the situation.

Here’s how it started: 

In the spring of 2017, Brandi Levy, a 9th grader on the school’s junior varsity cheerleading squad at a public high school in Pennsylvania, was having a bad day. She learned she would not be elevated to the school’s varsity squad. She was at a convenience store with a friend and they both gave her camera the middle finger and she posted the photo on Snapchat with the phrasing, “F**k school, F**k softball, F**k cheer and F**k everything.” 

Now if you were ever a teen and/or raised one, you know that teens sometimes get very upset. And do dumb things. Now Brandi knew that the message would be erased on Snapchat but she also sent it to the 250 friends she has on Snapchat. One of them was a student at the school whose mother was a coach at the school.

You can figure what comes next. From the NY Times:

The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

Brandi and her parent sued and won, every step of the way including the SCOTUS decision this week.

In her Appeals Court decision (bold mine):

Jeff Driver, a law professor at Yale and the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind,” agreed with the school district, to a point.

“It is difficult to exaggerate the stakes of this constitutional question,” he said. But he added that schools had no business telling students what they could say when they were not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he said. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”  

 From the NY Times:

But it was the first time in more than 50 years that a high school student won a free-speech case in the Supreme Court, and the decision emphasized that courts should be skeptical of efforts to constrain off-campus speech.

 Analysis

A great, if surprising, call by the overwhelming majority of SCOTUS. (Justice Thomas, who is a strict constitutionalist, said there was a case of student speech and the school won that case so there’s your precedent…back during the Civil War.)

The Court reasoned that her speech:

- Did not name anyone including the school

- Did not harass or threaten or bully anyone or the school itself

- Did not disrupt school activities

- Did not attack any protected group

There were no fighting” words

Looking at some of the language in Tinker v. Des Moines, the case from 50 years ago, the Court then stated: 

“Neither students nor teachers shed their constitutional rights to freedom of speech or expression at the gate.”

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