By Courtney Dunn, of Ansell Grimm & Aaron P.C.,
Brandi Levy may have graduated from Mahanoy Area High School and retired her pompoms for good, but her fight against her alma mater is far from the finish line.
Instant Replay
When Levy found out that she would not be advancing to the varsity cheer team as a high school sophomore – and worse, that a freshman would be making the pyramid – she posted her feelings on her Snapchat story for 250 of her closest friends to view. The story featured a selfie in which Levy held up her middle finger, captioned “Fuck school, fuck softball, fuck cheer, fuck everything.” When a screenshot of her post made its way to the Mahanoy Area High School faculty, including cheer coaches, Levy was removed from the squad for her sophomore year.
Levy, a minor at the time, started small with fighting back. Her parents appealed to the athletic director, the principal, the superintendent, and the school board. When the school remained steadfast in Levy’s suspension, Levy filed a federal lawsuit, wherein the United States District Court for the Middle District of Pennsylvania held Levy’s Snapchat message was not disruptive, and that the suspension from the squad violated the First Amendment. The school was further ordered to reinstate Levy to the junior varsity cheer squad.
The school board appealed the district court’s decision, bringing the case to the U.S. Court of Appeals for the Third Circuit. The Honorable Cheryl Ann Krause defined off-campus speech as “speech that is outside school-owned, -operated, or –supervised channels and that is not reasonable interpreted as bearing the school’s imprimatur.” Levy’s Snapchat was just that. She both posed for and posted her now-famous story off-campus on a Saturday afternoon, on a platform that bears no association to the school district at all. The school board considered the 3rd Circuit’s opinion to be “dangerous”, though curiously failed to recognize the danger in violating students’ First Amendment rights in the first place.
What’s Happening Now
As expected, the Third Circuit opinion focused on the disruptiveness of Levy’s post. There have been questions regarding what constitutes disruption long before Levy was in the picture. On appeal, the school district’s argument was predicated upon off-campus speech urging peer suicide or posting provocative photographs of fellow classmates. The Third Circuit held that Levy’s post did not raise those issues and declined to rule on off-campus student speech that threatens violence or harasses others as it would relate to the First Amendment. In comparison to the school board’s own examples that reach far beyond a “disruption”, Levy’s use of expletives, though perhaps a bit crude, may more accurately be described as a teenager venting on social media.
In off-campus speech cases, court intervention has been warranted where a party is seeking protection or justice – where, for example, a student or faculty member is in fear. It is hard to overlook the likelihood that, here, the board was nothing more than insulted. Indeed, the school board’s dismay with Levy’s comment does not justify violating her right to say it, nonetheless. It is well-settled that “[f]reedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.” See Champion v. Commonwealth, 520 S.W.3d 331, 338 (Ky. 2017).
The Top of the Pyramid
It was largely disputed whether the Supreme Court would hear this case, having rarely taken student speech cases in the past. The parties came head-to-head arguing the implications of violating free speech versus the importance of avoiding disruptions in the school environment, both of which can undoubtedly have profound reverberations. The Supreme Court has been hard pressed to adhere to its own precedent set in Tinker v. Des Moines Independent Community School District,[1] holding that public schools could only punish student speech where it would “substantially disrupt” a school community.
The nine Justices recognized the need to exercise prudence in drawing a bright-line rule when it comes to on-campus versus off-campus speech and what, exactly, constitutes a “substantial disruption”. The court engaged with the attorneys, raising hypotheticals where student expression may not take the form a profanity, but exists, for example, in the form of a Confederate flag or a Black Lives Matter t-shirt.
Though the matter is still pending, there were some hints as to what way the bench was leaning. Justice Sonia Sotomayor, for example, clarified, “You’re punishing her here because she went on the Internet and cursed?”. Justice Stephen G. Breyer agreed, questioning whether there was evidence to suggest that Levy’s colorful choice of wording did, in fact, cause a material substantial disruption. Justice Brett Kavanaugh stood behind his fellow Justices, describing Levy’s rant as merely “competitive”, but suggested steering clear of addressing the issue too narrowly. Instead, he proposed ruling that the First Amendment does not categorically prohibit public schools from disciplining the off-campus speech of students and leaving it at that.
While it seems like the Supreme Court is cheering Levy on, there remain some more specific issues to address. Does Levy’s status as a voluntary student-athlete subject her to different guidelines than other public school students? If swearing constitutes disruptive behavior, wouldn’t that open the floodgates to punishment in the 50 million plus public schools across the nation? While Levy’s only intention was to make her way back onto the field, she has cleared the way for the Supreme Court to clarify the contours of the First Amendment in the context of social media. Until the Supreme Court officially settles the score, we can only continue to spectate from the stands.
Courtney Dunn is an attorney barred in New York and New Jersey. She is an associate at Ansell Grimm & Aaron P.C., where she is a member of the Commercial Litigation and Cannabis Law Groups.
[1] 393 U.S. 503 (1969).
