Supreme Court cheerleader case may trigger further lawsuits, professor says

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Cheerleading occupied an important place in Isabelle Johnston’s youth and college years.

She applauded all four years of high school, two in college and on competitive teams. Her mother is a cheerleader and her husband was also a cheerleader.

Whether she cheered on Salt Lake’s West High, on a competitive team, or the two years she cheered on Boise State University, Johnston was required to sign agreements spelling out the expectations of schools or clubs, such that maintaining a certain grade point average, avoiding alcohol and bans on posting images on social media that could misrepresent the team or organization, she said.

Johnston said she didn’t think too much about the deals she signed because “I understood that I had tried for a team and if I was part of the team there would be certain expectations that I would had to respect. “

Most of his teammates followed the rules, although one of his college teammates received a coach warning about his social media posts.

“She had been photographed at parties with alcohol, which is a no-no for the joy of the colleges. The coach said to me: ‘You have one more chance. If this happens again, you are off the team. I felt like it was always fair enough, you know, several warnings at least before the end, ”Johnston said.

Due to her long history with cheerleaders, Johnston has followed the case of the so-called offensive cheerleader closely. She was intrigued by what the Supreme Court ruling would mean in terms of the discourse of off-campus students, the role of social media and the future, any changes resulting from the agreements schools require cheerleaders, athletes and other school principals register as a condition of participating in extracurricular activities.

“It’s important for cheerleaders because in the future it shapes their freedom of expression. cheerleaders, so I found it interesting to see what was going on, ”she said.

Brandi Levy smiles as she speaks with American Civil Liberties Union of Pennsylvania Legal Director Witold “Vic” Walczak after hearing the United States Supreme Court rule in her favor on Wednesday, June 23, 2021 in Mahanoy City, Pennsylvania. The court voted 8-1 in favor of Levy, who was a 14-year-old high school freshman, when she expressed disappointment at not being a part of the cheerleader squad. college on Snapchat with a series of curses and a raised middle finger.
David McKeown, Republican-Herald via AP

How a jaded Snapchat sparked a Supreme Court case

The historical case of Brandi Levy v. Mahanoy region school district, which was ruled earlier this year by the Supreme Court, marked the first time in more than 50 years that the High Court has ruled in favor of students’ free speech rights.

When she wasn’t on the varsity team at her high school in Pennsylvania in the spring of 2017, then 14-year-old Levy took to Snapchat to express her frustration, at the time that she wouldn’t be getting past the junior varsity team as a rising sophomore, but also an incoming freshman made the varsity team.

One snapshot was a photo of Levy and a friend, middle finger up, with the caption “(Expletive) school (Expletive) softball.” (Expletive) bravo. (Expletive) everything.

The second shot said, “I love how me and (another student) are told we need a year of jv before going to college, but that doesn’t (sic) matter for nobody else?”

Both were sent to around 250 Snapchat friends, including school cheerleaders.

The snaps disappear around 24 hours after they were posted, but one recipient took a screenshot of the first snap and showed it to her mother, a cheerleader coach.

After learning about Levy’s positions, school officials suspended her from the junior cheerleader team for the coming year. After his parents’ attempts to overturn the punishment at the district level failed, they sought redress in federal court, arguing that punishing Levy for his speech violated the First Amendment.

A federal district court agreed, as did the Third Circuit Court of Appeals.

The case was appealed to the Supreme Court, which ruled that the Mahanoy area school district violated Levy’s First Amendment rights when he suspended her from the cheerleader team. junior for a vulgar social media message sent when she was not on school grounds.

In an 8-1 decision, the court found that in some cases, schools can remain free to regulate speech that takes place outside the physical school building, in the event of threats, harassment or intimidation.

In argument before the Supreme Court, judges considered the extent to which schools should have the discretion to discipline students for what they say off campus and whether the speech constitutes a material and substantial disruption of the school environment. .

“If using those words off campus were the problem, my God, every school in the country would only punish,” Judge Stephen G. Breyer said.

The debate off campus, on campus

The move comes as social media platforms continue to evolve and after a year where students across the country have engaged in some form of distance learning, which has somewhat blurred the definition of the school setting.

Jeff Van Hulten, director of public affairs for the Utah State Board of Education, said the Levy case “confirms for us how Tinker applies in a new way.”

In Tinker v. Des Moines Independent Community School District, the Supreme Court ruled on a ban by an Iowa school district from allowing students to wear black armbands to protest the United States’ involvement in the Vietnam War.

The judges concluded that students and teachers do not “waive their constitutional rights to freedom of speech or expression at the school gate”, ruling that “our Constitution does not allow state officials to deny their (students) form of expression “.

However, the 1969 ruling allowed schools to punish disruptive speech, at least when it occurred on campus.

Now, the issue of off-campus discourse has become more complex.

“When we examine the ever-changing boundaries of school, which can now exist entirely in cyberspace, there is this question: It is much more difficult to imagine the discourse on and off campus, and therefore, than does the school have the capacity to regulate?

“But when I look at the practical implications, as the court states, they are really limiting their decision by saying that you cannot sue a student for a speech unless it is significantly disruptive or threatens or harms a speech. individual or his rights, which for me really made this beautiful piece, an exception for bullying, ”said Van Hulten.

Izzy Johnston, a former cheerleader, is pictured in Centerville on Friday August 6, 2021.

Izzy Johnston, a former cheerleader, is pictured in Centerville on Friday August 6, 2021.
Laura Seitz, Deseret News

The state council has not taken a position on the decision, he said.

RonNell Andersen Jones, a law professor at the University of Utah SJ Quinney College of Law and First Amendment scholar, said the High Court refused to adopt a strict geographic line between speech at school and speech outside of school.

“They declined to say as a general rule that these special features that give schools an additional license to regulate speech will always disappear when the school regulates speech that takes place off campus,” Jones said, speaking to a recent Hinckley Institute of Politics at the University of Utah. forum.

“It is accepting that in this new media landscape, schools can sometimes have a substantial interest in regulating certain student communications, even when this is not happening at school”, specifically citing serious bullying, harassment who targets specific people and threats that target teachers or students, she said.

Jones said the ruling indicates that off-campus speech by students will generally be the responsibility of their parents, and that it will not be the role of the court to step in and punish that speech.

“The court explicitly recognizes in this opinion that if schools could regulate all off-campus speech that in any way involves the school community, that would cover virtually anything any modern student says or does outside of school. The student would be under the control of the school 24/7. The judges make it clear that they think this is not an acceptable First Amendment dynamic, ”she said.

The Levy case has a limited set of facts – the snaps were sent out of school hours, from a convenience store, and neither the school nor school staff were named or identifiable – he must not therefore not be considered a free game in terms of student speech, said Van Hulten.

“I think a lot of people read the headlines and assume this case is doing a lot more than it does,” he said.

Why the Levy decision opens the door to further legal challenges

Less clear are the practical implications for contracts or school constitutions that govern the speech and conduct of cheerleaders, athletes or other students participating in extracurricular activities, Jones said.

“The court is not talking about it frankly, and that means there will almost certainly be other litigation that will arise later. The case that has just been decided will be the previous director in the region, and then in the following cases, cases which are not exactly on all fours with the case of this cheerleader, but rather present the facts. slightly different, which might be slightly more convincing to the courts. to find favor with school districts in these areas, these might come out differently, ”Jones said.

Despite the vulgar nature of Levy’s clichés, the ruling notes, “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus, as U.S. public schools are the nurseries of democracy “.

Levy, who is now in college, said in an ACLU press release when the court handed down its ruling in June, that his school “went too far, and I’m glad the Supreme Court is d ‘OK”.

She continued, “I was frustrated, I was 14 and expressed my frustration the way teenagers do today. Young people must be able to express themselves without fear of being punished when they arrive at school. I could never have imagined that a simple snap would turn into a Supreme Court case, but I am proud that my family and I advocated for the rights of millions of public school students.

Johnston said she believed Levy “was within his rights to express his frustration and anger.

“I’m sure she worked really hard to make her varsity team and, you know, when she made the JV team, I’m sure she was frustrated. I think it’s fair to express on your personal social media that you feel frustrated.


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