The gist of the case is simple: Brandi Levy, a rising high school freshman was having a bad week. She didn’t make the varsity cheerleading squad for her coal-country Pennsylvania high school. And she didn’t get the position she wanted on a private softball team. That weekend, the girl vented in a pair of images posted to her Snapchat story from the local Cocoa Hut convenience store. As the Supreme Court recounts the event: “The first image…showed [Levy] and a friend with middle fingers raised; it bore the caption: ‘Fuck school fuck softball fuck cheer fuck everything.’” A second image was a caption and “and upside-down smileyface emoji” protesting that an incoming freshman had made the varsity cheer squad without “a year of jv.”
In a tale as old as time, one of Levy’s friends ratted her out to coaches and teachers, and Levy was suspended from her position on the junior varsity cheer squad for a year — despite having made personal apologies to those she’d offended. Levy and her family sued in federal court, and the case wended its way to the Supreme Court, which ruled 8-to-1 in favor of the teen, with only Justice Clarence Thomas dissenting.
The majority opinion, written by Stephen Breyer, accuses school administrators of significant overreach. “The school’s justifications for punishing [Levy’s] speech were weak,” Breyer wrote. “She sent the messages and image in question on her own time while at a local convenience store. They were transmitted via a medium that preserved the communication for only 24 hours.” Breyer notes that Levy didn’t send the message to any school staff or coaches — who the justice notes wouldn’t have even been aware of the posts if not for the disloyalty of one of Levy’s buddies.
Breyer notes that the school couldn’t claim any real damage was done from the Snapchat story, other than some minor “upset” and unexpected “negativity.” The justice wrote that even for high school students, the First Amendment is stronger than that: “The freedom of students to speak off-campus would not be worth much if it gave way in the face of such relatively minor complaints,” Breyer wrote. “Speech cannot be suppressed just because it expresses thoughts or sentiments that others find upsetting.”
Addressing “the matter of [Levy’s] language,” Breyer wrote that no school has “the authority to regulate the vocabulary and gestures of all its students 24 hours a day and 365 days a year.” He insisted that disciplining the freshman for that expression was her parents’ job. “Whatever [Levy’s] parents thought about what she did,” Breyer wrote, “it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity.”
Breyer closed his decision with a warning to the “more than 90,000 public school principals in this country” not to “get carried away, as did the school officials in the case at hand” instructing that “school officials should proceed cautiously” before attempting to control the off-campus speech of the kids who attend their schools.
In his dissent, Justice Clarence Thomas took a much more conservative stance, beginning with redacting the “fucks” from Levy’s messages (“F*** school” and “f*** cheer”). Thomas — who would have made an able vice principal — mounted a defense of the broad reach of in loco parentis (the principle that schools, teachers and coaches can act in the place of parents) to argue that “the coach had authority to discipline [Levy].” Thomas added that “no textual or historical evidence” supports the notion that the federal courts can police “the proportionality of school disciplinary decisions in the name of the First Amendment.”
Read the majority’s decision and Thomas’ dissent here.