“F--- school, f----softball, f--- cheer, f---everything,” Levy wrote in her 2017 message, which prompted a one-year suspension from the cheerleading program.
Writing for the nearly unanimous court, Justice Stephen Breyer said the Mahanoy Area School District went too far in trying to punish Levy for the fairly mundane, if crude, post.
“We can find no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action,” Breyer wrote. “Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class ‘for just a couple of days’ and that some members of the cheerleading team were ‘upset’ about the content of [Levy’s] Snapchats.”
The court explicitly declined to issue “a broad, highly general rule” or bright-line test, but Breyer said it would be dangerous to give schools unfettered permission to police student speech both on and off campus.
“Courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention,” Breyer added.
With some liberals wary that overly broad speech protections could allow for intimidation of students who are members of racial minorities, or LGBTQ, Breyer suggested that educators can take action against some off-campus speech.
The Bill Clinton appointee included on that list: ”serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”
Justice Clarence Thomas was the sole dissenter. He argued that Breyer’s opinion ignored precedent and was too vague to provide guidance for future cases.
“The Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means,” Thomas warned.
During oral arguments in April, Justice Brett Kavanaugh — an ardent sports fan and longtime girls' basketball coach — sounded anguished about the school's decision to kick Levy out of cheerleading for a year over a fleeting outburst. He said it is hard to overestimate the significance to a youngster of not making a varsity team.
“It’s so important to their lives,” Kavanaugh said. “Coaches sweat the cuts, and it guts coaches to have to cut kids who are on the bubble. … A year suspension just seems excessive to me.”
However, Thomas' dissent Wednesday suggested that the justices’ view that the school overreacted colored the court’s judgment.
“The discipline here — a 1-year suspension from the team — may strike some as disproportionate,” the George H.W. Bush appointee wrote. “But that does not matter for our purposes.”
“Disproportionate discipline ‘can be challenged by parents in the political process,’” Thomas added. “But the majority and the parties provide no textual or historical evidence to suggest that federal courts generally can police the proportionality of school disciplinary decisions in the name of the First Amendment.”
While all the justices but Thomas joined Breyer’s opinion, Justice Samuel Alito wrote a concurring opinion that Justice Neil Gorsuch joined.
Alito’s opinion repeatedly inveighed against granting schools permission to impose a “heckler’s veto,” by invoking the hurt feelings of other students to justify punishing speech on or off campus.
“Speech cannot be suppressed just because it expresses thoughts or sentiments that others find upsetting,” Alito wrote.
The school district had asked the high court to reverse an appeals court decision in favor of Levy. The 3rd Circuit Court of Appeals ruled that the school violated Levy’s First Amendment right to free speech because the landmark 1969 ruling on K-12 student expression, Tinker v. Des Moines Independent Community School District, does not give officials power to regulate speech that occurs off campus and outside of school programs.
The nation’s second largest teachers union and education groups representing school boards, principals and superintendents, in an amicus brief, had urged the high court to side with the school district. The groups wanted justices to “reaffirm that the nation’s public schools retain the authority to discipline students, as warranted, for off campus student speech that threatens to interfere improperly with school operations.”
They argued that the 3rd Circuit’s “stark line between off-campus and on-campus speech is untenable” because of social media. They also pointed at the past year of online classes across the country due to the pandemic.
The National School Board Association, which represents more than 90,000 school board members across the country, touted the decision as a win for schools. In the decision, the high court clarified that schools do have some ability to regulate off-campus speech and didn’t take the hard-line approach as the circuit court did, said Francisco Negron, NSBA’s chief legal officer in an interview. School districts were most concerned over whether they would have the ability to control online bullying or harassment that happens off campus.
“The Third Circuit had really curtailed what schools understood to be the boundaries of Tinker,” Negron said.
“In this case, what the court said is that there are certain circumstances where the school district can and is authorized to regulate off campus speech,” he added. “There is no sort of bright line between off campus and off campus speech.”
American Federation of Teachers President Randi Weingarten also lauded the opinion, saying “the court made a wise decision in favor of the student.”
“While off-campus speech by students can be the subject of discipline when threats or bullying are involved, there must be a higher standard when the speech occurs outside of school,” she said.