Law & Courts

7 Things to Know About the Cheerleader Speech Case Coming Up in the U.S. Supreme Court

By Mark Walsh — April 24, 2021 4 min read
Image shows a picture of Brandi Levy in her cheerleading uniform in front of Mahanoy Area High School.
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On Wednesday, the U.S. Supreme Court will hear oral arguments in Mahanoy Area School District v. B.L., an important case about whether school officials may discipline students for off-campus speech.

Education Week’s main preview of the case, including an interview with student Brandi Levy, is here. And we wrote separate stories about friend-of-the-court briefs in support of the Pennsylvania school district, about briefs supporting the student, and about a novel brief by students who serve on school boards (also in support of the student).

As the arguments approach in this potentially landmark case, we thought we would remind readers what is at stake and point out how they may listen to the arguments for themselves.

What is this case about?

Levy was a freshman at Mahanoy Area School District in 2017 when she became upset over not being selected for the varsity cheerleading team. She was at a convenience store—off the school campus—on a Saturday when she posted a short, profane message on Snapchat expressing her frustration with cheerleading and school. Her cheerleading coaches learned of the “snap” and suspended her from the JV team for one year.

What are the legal issues?

Levy sued under the First Amendment’s guarantee of free speech. She was reinstated to the cheerleading team in the short run, and two courts ruled in her favor. Most significantly, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled last year that the key Supreme Court ruling on student speech, Tinker v. Des Moines Independent Community School District, generally does not give school officials the authority to discipline off-campus speech by students. Tinker was the 1969 high court decision involving students who had worn black armbands to school to protest the Vietnam War. The ruling said student speech was protected as long as school was not substantially disrupted.

What is the school district’s view of the case?

The Mahanoy Area School District asked the Supreme Court to take up its appeal of the 3rd Circuit’s decision, and the high court agreed to do so. The district argues that schools have long regulated off-campus behavior by students, and that remote learning during the pandemic has further blurred lines between campus and off-campus conduct. Levy’s Snapchat message was directed at her school friends and fellow cheerleaders and disrupted that community, the district says.

What are the arguments for the student?

Lawyers for Levy argue that applying the Tinker case outside of school would seriously undermine the speech rights of students. They point out that under Supreme Court precedent and traditional First Amendment principles, Levy could not be punished outside of school for using the four-letter word she repeated in her Snapchat post. And they propose a test in which school officials would still have authority over the “school environment.” That would include the campus or its immediate environs during school hours, at a school-sponsored or -supervised event, on a school-sponsored website, while en route to or from school, or even from students’ own homes if they are engaged in school-sponsored remote learning or using a school laptop issued for school work.

How are the Supreme Court justices likely to view this case?

We’ll learn a lot more from the arguments, but here are a couple of things to think about. Four members the current court remain from the last time they heard a student speech case. That was Morse v. Frederick, in 2007, which involved a student who unfurled a large banner outside his high school that said, “Bong Hits 4 Jesus.” School officials perceived it as a pro-drug message and suspended the student. The Supreme Court upheld the authority of school officials to regulate student speech advocating illegal drug use.

The four members of the current court who participated are Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr. Roberts wrote the majority opinion. Thomas and Alito joined it, but they each wrote concurrences carving out their views on student speech in greater detail. Breyer, the only one of the four who is a member of the court’s liberal bloc, wrote an opinion concurring in the judgment in part and dissenting in part.

Another way to look at it is that two members of the court are parents of K-12 students—Justices Brett M. Kavanaugh and Amy Coney Barrett, though their children attend private schools. Roberts and Justice Neil M. Gorsuch have children who finished high school in recent years.

Can I watch or listen to the arguments?

Since last May, the Supreme Court has conducted all of its arguments over the telephone due to the pandemic. They are not on Zoom or any other video platform, even for the justices and the participating lawyers. But anyone can listen to the arguments live or later in the day, or the next day, or whenever they want.

The best place to go to listen live is C-SPAN’s website. For some bigger cases, C-SPAN also puts the audio up on one of its cable channels, but that depends on whether Congress is in session and other factors. The court posts the audio on its website after arguments are completed.

The argument in the student speech case is April 28 beginning at 10 a.m. Eastern time. It is scheduled to go for one hour, but in reality the telephone arguments have dragged on a bit, and the argument in this case is likely to run closer to 90 minutes.

When can we expect a ruling?

The court should it issue its ruling in the case by the end of the term, in late June or early July.

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