- The Washington Times - Wednesday, April 28, 2021

The Supreme Court heard its first major student speech case in decades on Wednesday, grappling with the free-speech rights of a cheerleader who was kicked off the high school team for using the F-word on Snapchat.

The former cheerleader, Brandi Levy, who wasn’t in court for the proceedings, said in a statement that she was the victim of overzealous school officials.

“I was 14 years old and was at a point in my life when I was really frustrated with things that were happening around me,” said Brandi, who has since graduated.

“I want the court to understand that this is how kids today express themselves and that they should be able to do that without worrying about being punished at school.”

Several of the justices seemed hesitant to give a school full authority to punish students for speech that occurs off campus. Others expressed concerns about the impact on policing off-campus bullying.

“She used swear words, you know, unattractive swear words, off campus. Did that cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off campus did, I mean, my goodness, every school in the country would be doing nothing but punishing,” said Justice Stephen G. Breyer, a Clinton appointee.

The free-speech battle began when Ms. Levy, identified as B.L. in court papers since she was a minor at the time the lawsuit was filed, posted a photo of herself flipping the bird on Snapchat in anger at not making the varsity squad heading into her sophomore year.

The Pennsylvania teen blasted out the uncensored Snapchat post with a vulgar caption while out shopping on the weekend with a friend. She was not wearing a school uniform in the image and didn’t mention the school’s name. “F*** school f*** softball f*** cheer f*** everything,” it read.

Snapchat posts typically last just 24 hours online before vanishing. Brandi’s post, however, took on a life of its own.

When Mahanoy Area School District officials became aware of the post, they ruled it violated school policy requiring cheerleaders to avoid “foul language and inappropriate gestures.”

The high school then removed her from the cheer squad for a full year, prompting her parents to sue in 2017.

In their initial lawsuit, Brandi’s parents argued that the school violated their daughter’s First Amendment rights and won in the lower courts, having their daughter reinstated on the squad.

The raunchy Snapchat post could create a legal standard for student speech in the digital age, updating decades-old precedent from 1969.

The landmark case was Tinker v. Des Moines Independent Community School District. The legal dispute arose when a group of students wore black armbands as a political statement about the Vietnam War.

They were suspended for violating school rules, but the Supreme Court famously ruled for the students, saying they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

It was an argument echoed by David Cole, legal director of the American Civil Liberties Union which represented Ms. Levy, who told the justices a school shouldn’t interfere with a parent’s authority to punish a student for speech that occurs outside of campus.

He said it would be too intrusive to let a school punish a student for speech made out of school hours on the internet.

Students “would essentially be carrying the schoolhouse with them everywhere they would go,” he said.

The Mahanoy Area School District argued that speech can be punished depending on the context, saying when, where, and how many people heard it should all be considered by a teacher on whether it’s substantially disruptive and should be penalized.

“The other side is just wrong to suggest schools somehow are the gulag on campus,” said Lisa Schiavo Blatt, a lawyer for the district.

Ilya Shapiro, vice president of the Cato Institute, predicted the justices will side with Ms. Levy. “Ultimately the former high school cheerleader will (and should) win because students don’t shed their constitutional rights outside those gates when the gates become digital,” he said.

A ruling in the case is expected by the end of June.

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