After rocking the college sports world in its unanimous NCAA v. Alston ruling on Monday, the U.S. Supreme Court on Wednesday clarified when public high schools can punish students—including athletes—for speech that occurs off campus.
In an 8 to 1 ruling, the Court held that Pennsylvania’s Mahanoy Area School District violated a cheerleader’s First Amendment rights by disciplining her after she posted a photo on Snapchat with her middle fingers up and with the accompanying text, “f— school, f— softball, f— cheer, f— everything.”
In May 2017, Brandi Levy was a 14-year-old freshman frustrated that she hadn’t been picked for the varsity team. She was in the Cocoa Hut, a local convenience store, on a Saturday, when she published the snap. The school suspended her from the team for her sophomore year. Levy, now a college student, sued and won at both the federal district court level and the U.S. Court of Appeals for the Third Circuit.
Although Levy’s case concerns public high school students, college athlete advocates filed an amicus brief. They warned the justices that the Court’s decision could impact college athletes’ speech and NIL rights, as well as involvement in social movements.
Writing for the majority, Justice Stephen Breyer stressed that public schools ought to be constrained when attempting to regulate off-campus speech (private schools aren’t subject to the same constitutional constraints and can regulate student speech with much greater discretion). He highlighted that, in contrast to supervising students in the classroom or elsewhere on campus, “rarely” will a school “stand in loco parentis” (in place of parents) when a student engages in off-campus speech.
Justice Breyer added there was virtually no evidence that Levy’s snap meaningfully interfered with school “efforts to maintain [team] cohesion.” Some of Levy’s teammates were “visibly upset” by her snaps, but he emphasized that sort of ordinary human response doesn’t empower a school to take actions that would otherwise undermine free speech. Justice Breyer further reminded that public schools are “the nurseries of democracy” and have “an interest in protecting a student’s unpopular expression.”
At the same time, Justice Breyer underscored that schools may discipline students when off-campus speech implicates a significant school interest. He offered a non-exhaustive list that included “serious or severe bullying,” threats aimed at teachers or students, and improper conduct while participating in online studies. Justice Breyer also implicitly suggested that coaches maintain authority over their teams while traveling off campus. To that point, he noted a school may treat as “on campus” certain situations where the school is supervising a student off school premises. “Speech related to extracurricular activities,” the 82-year-old former Harvard Law Professor remarked, extends to “team sports.”
Justice Breyer’s opinion heeds to the landmark precedent set by the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. That case concerned student speech occurring on campus and during school hours. In Tinker, the speech consisted of students wearing black armbands in protest of the Vietnam War. In ruling for those students, the Court reasoned that while school officials can prohibit speech if it would cause substantial disruption, they can’t infringe on First Amendment protections for political speech.
Justice Samuel Alito, joined by Justice Neil Gorsuch (who authored the Alston opinion), authored a concurring opinion. He elaborated on sports-related connections to Levy’s situation. Justice Alito observed that, given parents’ consent to school supervision, school authority over students’ off-campus speech extends to “school sports . . . that may take place after regular school hours or off school premises.”
At the same time, Justice Alito cautioned that schools should exercise prudence when assessing how a student’s social media messages affect the “the morale” of a team. He suggested that if coaches are concerned about morale, they “may wish to take group cohesion and harmony into account in selecting members of the team, in assigning roles, and in allocating playing time.” The coach’s decision to punish Levy, Justice Alito suggested, should have focused on whether her “attitude” would impact her effectiveness “in doing what cheerleaders are primarily expected to do: encouraging vocal fan support at the events where they appear.”
Justice Clarence Thomas dissented. Drawing from cases as far back as the 1800s, he stressed that “schools historically could discipline students” for “disrespectful” statements made while off campus. He also criticized his colleagues for neglecting to consider that “students like [Levy] who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm” teams and clubs. “A profanity-laced screed delivered on social media or at the mall,” Justice Thomas argued, “has a much different effect on a football program when done by a regular student than when done by the captain of the football team.”
An amicus brief authored by University of Denver law professor Justin Marceau forewarned that the impact of the Court’s ruling would not be automatically confined to high school. College athletes, the brief detailed, could speak out on topics that a school might find “disruptive.” Justice Breyer’s opinion suggests that such speech is likely protected. At the same time, Justice Alito’s concurring opinion emphasizes that Levy’s case doesn’t involve a college student. “For several reasons, including the age, independence, and living arrangements of such students,” he maintained, “regulation of [college student] speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students.”