judge signing on the papers

U.S. Supreme Court decision on off-campus student speech

POE Legal Update — By: Madalynn Martin, Associate General Counsel

This summer, the U.S. Supreme Court finally guided schools on off-campus student speech. Back in 1969, the Supreme Court held that students do not shed their constitutional right to free speech when they enter the “schoolhouse gate.” At the time, it would have been hard to contemplate the reality of social media and that most of student speech happens outside the “schoolhouse gate” 24/7 on various internet platforms.

In this recent case, the Court ruled 8-1 in favor of a former high school cheerleader, Brandi Levy, who was suspended from her team for vulgar language used on Snapchat. Levy was upset that she did not make the varsity cheer squad and sent a photo via Snapchat to her friends of her middle finger raised with a profanity-filled caption about school and the cheer team. This photo circulated throughout the cheer team and inevitably ended up in the hands of the cheer coaches. Due to the content of the photo, the cheer coaches decided to suspend Levy from the cheer team. Levy sued the school claiming that the suspension based on this off-campus post on social media violated her First Amendment right to free speech.

The Supreme Court utilized a balancing test when deciding whether or not Levy’s suspension was valid under the First Amendment. The Court balanced the school district’s inherent regulatory interests to be able to maintain and run a school and the First Amendment right of the student. The Court explained that three features of off-campus speech lessen school’s regulatory interest. First, a student’s off-campus speech is usually a parental, rather than school-related, responsibility. Second, when coupled with on-campus regulations of speech, off-campus regulations of speech implicate a 24-hour restriction on a student’s ability to speak. Third, because “public schools are the nurseries of democracy,” schools have an interest in safeguarding the marketplace of ideas by protecting a student’s unpopular expression. The Court stated that schools have a strong interest in helping their students understand the aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.” Despite the fact that the cheer team had Levy sign a code of conduct, the Supreme Court said Levy should not have been suspended from the team for this off-campus speech.

The Court clarified that there are certain cases where the school has a strong regulatory interest in limiting speech including, “. . . 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.” In these cases, the interests of free speech are outweighed by the need to run the school effectively.

In this case, the Supreme Court found that Brandi Levy’s speech did not create any substantial disruption on campus and, as such, the cheer team could not suspend her for this speech that was purely off campus. Ultimately, the Court explained that its decision was “necessary to protect the superfluous in order to preserve the necessary.”

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