High court sides with cheerleader in free speech case

Those who work with school districts said the finding is welcome clarification of schools' and students' rights
By: and | June 28, 2021

The line between acceptable on-campus and off-campus speech when it comes to discipline may be a little clearer for school districts after the latest ruling by the U.S. Supreme Court.

The court ruled in favor of a former high school cheerleader who, while using her own device off-campus, posted a profane photo with an obscene caption on Snapchat in frustration after finding out she didn’t make her school’s varsity cheerleading squad. She sued the district after she was suspended for a year from the junior varsity team.

The court agreed with the 3d U.S. Court of Appeals decision in B.L. v. Mahanoy Area School District that the student’s venting online was protected speech. But the court found that the 3d Circuit’s reasoning based on Tinker v. Des Moines Independent Community School District “did not apply because schools had no special license to regulate student speech occurring off-campus.”

Supreme Court Justice Stephen Breyer wrote in the 8-1 majority opinion that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”

Those who work with school districts said the finding is welcome clarification of schools’ and students’ rights.

“Off-campus speech that is bullying, cyberbullying, discriminatory harassment or something that’s significantly disruptive to the educational environment is still something that a school district can address with school discipline,” said Jocelyn Kramer, a school attorney at Weiss Burkardt Kramer LLC in Pittsburgh.

“We’ve been kind of living with the 3d Circuit decision in Mahanoy, which was terrible for school districts. We’re happy with the decision. The Supreme Court got it right that school districts don’t have unfettered authority to address off-campus speech, but certain classes of off-campus speech are not beyond school authority,” Kramer said.

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“Schools will have to create policies that clarify for students and staff members what their rights and authority are,” added Gary Reusch, a school attorney at Buelow Vetter Buikema Olson & Vliet LLC in Waukesha, Wis.

“[The Supreme Court] also made it clear that the application of the First Amendment to the many variations of off-campus speech cannot be resolved in this one case,” Reusch said. “Technology is fast-moving and has many differing formats, and the court recognized that it could not prepare a broad Tinker-like solution. Rather, the Court left open to future decisions, the case-by-case and categorical criteria which may be applied. School officials will need to craft policies and student handbooks in a way which provide notice to students and guidance to school principals so as to properly balance the rights and interests of all.”

Brandi Levy, the plaintiff who was 14 at the time of the online post that lead to the discipline, posted a selfie of herself giving the camera a middle finger and captioning the photo with the obscene words, “F–k school,f–k softball f–k cheer f–k everything.”

Cara Nissman and Florence Simmons cover education issues for LRP Publications.