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U.S. Supreme Court ponders cheerleader’s profanity in free speech flap

A Pennsylvania teenager whose profanity-laced outburst on social media got her banished from her high school’s cheerleading squad is in the spotlight at the U.S. Supreme Court this week, arguing people like herself should be able to express themselves without punishment.

Brandi Levy, who made her Snapchat post away from school and on a weekend, is at the center of a major case testing the limits of the U.S. Constitution’s First Amendment guarantee of freedom of speech. The nine justices on Wednesday (April 28) are set to hear arguments in the Mahanoy Area School District’s appeal of a lower court ruling in favor of Levy that found that the First Amendment bars public school officials from regulating off-campus speech.

Levy’s indelicate May 2017 Snapchat post came two days after Mahanoy Area High School, in Pennsylvania’s coal region, held its cheerleading tryouts. The ninth-grader, who had been a junior varsity cheerleader, was still infuriated about being left off the varsity squad.

At a convenience store in Mahanoy City on a Saturday, she posted a picture of her and a friend holding up their middle fingers, adding a caption using the same curse word four times to voice her displeasure with cheerleading, softball, school and “everything.”

She was 14 years old at the time. She is now an 18-year-old college student studying accounting.

“I’m proud of sticking through it all the way to here. I really am because it’s going to prove a point that schools shouldn’t be able to punish students for how they express their feelings and how they want to,” Levy said in an interview.

Coaches ousted Levy from the squad for a year, saying she had broken various rules and undermined team cohesion. Backed by the American Civil Liberties Union, Levy and her parents sued the district seeking reinstatement to the squad and a judgment that her First Amendment rights had been violated.

“They (the school) should be concentrating on educating the students, and not policing 24 hours a day. Their job is to educate, not be social media police and watching everything they do. That’s my job as a parent to do that and if something isn’t right, for me to take the appropriate action how I feel it should be,” said Larry Levy Jr., Brandi’s father.

A judge ordered Levy’s reinstatement, finding that her actions had not been disruptive enough to warrant the punishment. Under a 1969 Supreme Court precedent, public schools may punish student speech that would “substantially disrupt” the school community. Levy’s case will determine whether this authority extends beyond the schoolhouse gates.

After the school district appealed, the Philadelphia-based 3rd U.S. Circuit Court of Appeals decided that the 1969 precedent, in a case known as Tinker v. Des Moines Independent Community School District, does not apply to off-campus speech and that school officials may not regulate such speech.

A decision in favor of Levy, according to the district and its supporters, could make it harder for teachers and administrators to curb bullying, racism, cheating and invasions of privacy, all frequently occurring online, outside school property or during off hours.

The district has argued that off-campus student speech can harm a school and its functions, noting that in the internet era, the lines between on-campus and off-campus are blurred.

“If a student on the weekend uses her private email to blast harassing messages to school email accounts, where did the speech happen?” the district asked in a legal filing.

The ACLU said giving educators the power to police off-campus speech would extend censorship everywhere young people go.

“The power that the school district is asking the Court to give it would allow them to censor anything that is considered controversial, unpopular, certainly critical of the school. So you think about the divisive times that we live in and, depending on the politics and the school district, you could post Black Lives Matter and get in trouble. Or if you live in a different political world, you could post the Confederate flag and get in trouble for that,” said ACLU attorney Vic Walczak.

The Mahanoy Area School District declined to comment on the case, according to their attorney, Lisa Blatt.

Levy’s photo was visible for 24 hours on Snapchat, along with another post questioning a younger girl’s selection to the varsity squad. Some cheerleaders and students chafed at the posts and the controversy disrupted classes, according to court papers.

The Supreme Court is due to rule by the end of June.

(Production: Arlene Eiras)

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