A cheerleader's Snapchat profanity gets U.S. Supreme Court's attention
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[April 23, 2021]
By Andrew Chung
(Reuters) - Two days after Mahanoy Area
High School in Pennsylvania held its cheerleading tryouts, ninth-grader
Brandi Levy was still fuming about being passed over for a spot on the
varsity squad.
While a younger girl had been picked for varsity, Levy was facing
another year relegated to the junior varsity cheer squad. That Saturday
afternoon in May 2017 - standing not on school grounds but in the Cocoa
Hut convenience store in Mahanoy City in the state's coal country - Levy
pulled out her cellphone and, along with a friend, raised her middle
finger to the camera.
Levy, age 14 at the time, posted the photo to the Snapchat social media
platform, adding a caption using the same curse word four times to voice
her displeasure with cheerleading, softball, school and "everything."
That posting prompted the school to banish her from the cheerleading
squad for a year. It also led to a major U.S. Supreme Court case testing
the limits of one of America's bedrock constitutional rights. The nine
justices on Wednesday are due to hear arguments on whether this
disciplinary act by a public school - a government institution -
violated the U.S. Constitution's First Amendment guarantee of freedom of
speech.
For Levy, now 18 and a college student studying accounting, the
punishment at the time felt instinctively wrong.
"I was thinking through my head that was unfair, like how could I be
punished for something so small? And I didn't do it in school, so I was
questioning why," Levy said in an interview.
"I shouldn't have to be afraid to express myself and I should be able to
do it how I want to without being punished by anybody. What I said, it
wasn't targeting, it wasn't bullying, harassment, or anything like
that," Levy added.
Backed by the American Civil Liberties Union, Levy and her parents sued
the Mahanoy Area School District seeking reinstatement to the squad and
a judgment that her First Amendment rights had been violated.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals sided with
Levy, finding that the First Amendment bars public school officials from
regulating off-campus speech. The district then appealed to the Supreme
Court.
Under a 1969 Supreme Court precedent, public schools may punish student
speech that would "substantially disrupt" the school community. Levy's
case will determine whether this authority extends beyond the
schoolhouse gates.
The Supreme Court is due to rule by the end of June.
'THE WILD WEST'
A decision in favor of Levy, according to the district and its
supporters, could make it harder for teachers and administrators to curb
bullying, racism, cheating and invasions of privacy, all frequently
occurring online, outside school property or during off hours.
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Brandi Levy, a former cheerleader at Mahanoy Area High School in
Mahanoy City, Pennsylvania and a key figure in a major U.S. case
about free speech, poses in an undated photograph provided by the
American Civil Liberties Union. Danna Singer/Handout via REUTERS
President Joe Biden's administration supports the
district, arguing that off-campus student speech deserves broad
protection unless it threatens the school community or targets
specific individuals, groups or school functions.
"Principals have to ensure the safety and well being
of everybody on their campus," said Ronn Nozoe, chief executive
officer of the National Association of Secondary School Principals.
"It can't be the Wild West."
The district has argued that off-campus student speech can harm a
school and its functions, noting that in the internet era the lines
between on-campus and off-campus are blurred.
"If a student on the weekend uses her private email to blast
harassing messages to school email accounts, where did the speech
happen?" the district asked in a legal filing.
Levy's photo was visible for 24 hours on Snapchat, along with
another post questioning the younger girl's selection. Some
cheerleaders and students chafed at the posts and the controversy
disrupted classes, according to court papers. The cheerleading
coaches removed Levy from the team, saying she had broken various
rules and undermined team cohesion.
After she sued, a judge ordered Levy's reinstatement to the squad,
finding that her actions had not been disruptive enough to warrant
the punishment. The 3rd Circuit went further, deciding that the
Supreme Court's 1969 precedent, known as Tinker v. Des Moines
Independent Community School District, does not apply to off-campus
speech and school officials may not regulate such speech.
The ACLU said giving educators the power to police off-campus speech
would extend censorship everywhere young people go and prompt
schools to conduct "dragnet online surveillance" of students.
"There's lots of things that schools can do to protect students from
bullying and harassment that doesn't involve punishing kids for
speech that they engage in off campus," said Sara Rose, an attorney
at the ACLU of Pennsylvania who is involved in the case.
The religious-liberty group Alliance Defending Freedom told the
justices in a brief to guard against fueling "cancel culture," a
term used by conservatives to criticize the pushback against public
figures deemed to have said or done something deemed offensive by
others.
(Reporting by Andrew Chung in New Orleans; Editing by Scott Malone
and Will Dunham)
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