Justices seem wary of making broader statements on student free speech
Cheerleaders / YouTube screenshot 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