Shut up, kid: Free Speech in Schools

Last month, the Supreme Court of the United States heard arguments in a case which will define free speech rights for public schools students for the foreseeable future.  

The current case before the Court, Mahanoy Area School District v. B.L., addresses the plight of Brandi Levy.  In 2017, Levy was a freshman at Mahanoy Area High School in Pennsylvania when she failed to qualify for the varsity cheerleading team.  In a fit of frustration, Levy and a friend took a picture of themselves giving the middle finger to the camera and added to the photo:  “F-ck school f-ck softball f-ck cheer f-ck everything.”  She posted the photo to a Snapchat story where approximately 250 of here friends were able to access it.  Among those who saw the photo was the daughter of the cheerleading coach.  Levy received a year long suspension from the cheerleading squad.

The fate of free speech will soon be announced from here

One of the more significant questions posed in this case is the authority of the schools to police the speech of students, particularly when a student makes a statement outside of school.  Do students have the ability to speak their mind?  How can schools run an orderly educational program if they cannot punish students for their speech?  

Though the judiciary has a history of siding with school authorities more often than not, students do maintain their Constitutional rights when at school.  Let’s briefly examine two relevant cases which substantiate free speech rights.

The background

In 1943, West Virginia state law required public school students to stand, salute, and recite the Pledge of Allegiance as part of the daily school routine.  The Barnette family, devout Jehovah’s Witnesses, believed this particular action violated the First Amendment’s freedom of speech protections.  In West Virginia State Board of Education v. Barnette, Justice Robert Jackson aptly wrote, 

To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.

Freedom of speech not only includes the right to communicate one’s ideas, but it also includes the right to say nothing at all.

Fast forward to 1965, in Des Moines, Iowa, when John Tinker, his sister Mary Beth, and their friend Christopher Eckhardt decided to wear black armbands to school to express their disapproval of American policy in the Vietnam War.  School administrators found out about their planned demonstration and informed students anyone wearing the black armbands would be suspended until they complied with school policy.  

When the students wore the armbands anyway, the school administration suspended them.  The parents of the Tinkers filed suit against Des Moines schools and eventually, the case landed in front of the Supreme Court.

In deciding Tinker v. Des Moines, the Court noted that school authorities can limit speech in certain instances, particularly if that speech or expressive conduct “materially and substantially” interferes with appropriate discipline or the operation of the school.  

Justice Abe Fortas wrote in the opinion of the Court, 

Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

And those schools would have gotten away with it, if it weren’t for those meddling kids!

Fortas’ opinion in Tinker has been the means by which schools’ policies must be judged.  In that particular instance, the Des Moines school officials could not demonstrate how students wearing black armbands somehow disrupted the educational process.  

Since the ruling in Tinker, the Supreme Court has ruled in favor of school authorities on a regular basis when determining free speech issues regarding students.  Good reason exists for schools to punish students for certain behaviors.  A student could not interrupt an exam in the middle of math class with a rant about an upcoming election and expect not to receive some form of disciplinary action.  Their speech or expressive conduct would disrupt the educational process.

When considering Brandi Levy’s tirade on Snapchat, I see three pertinent questions:

1. In applying the standard of Tinker, did Levy’s conduct materially or substantially disrupt the educational process of the school (with respect to academic work or discipline)?

The answer here appears to be a resounding ‘no.’  The petitioner in this case offered no evidence or argument which substantiates the notion that Levy’s conduct did anything to disrupt the educational process.  School administrators might argue that the substantial attention from the case demonstrates the amount of disruption Levy’s speech caused.  However, that argument fails because the actions of the school system brought about the national attention to the situation. 

2. Should schools have the power to discipline students for off-campus conduct? 

Again, the answer to this question is ‘no.’  The off campus conduct of students is conduct subject to rules and laws established by state and federal authorities.  These are the appropriate authorities who govern the behavior of all citizens.  

David Cole, the attorney for Levy, made a poignant statement in his oral argument, noting:

Expanding Tinker would transform a limited exception into a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go.

Allowing schools to punish off campus conduct allows for petty tyranny over children, which ignores the fact that while they are children, they still have Constitutional rights.  It would create a sense of paranoia among children where they could not express themselves without fear of repercussions.  This is not consistent with the First Amendment.  

Several of the justices on the Court asked significant questions about the ability of a school system to handle legitimate problems which affect children in school.  For example, what about instances of online harassment which happen outside of the school environment but affect a child’s ability to focus on their education?  

Schools can take actions which will mitigate the problems associated with online harassment without punishing anyone.  If children are unable to resolve the issue themselves (which they often cannot), parents have an obligation to attempt to fix the problem.  If the children are younger, parent involvement can end the matter.  If children are teenagers, laws exist to handle this type of harassment.  

Does that seem to harsh or a waste of time to involve law enforcement?  It isn’t.  In our schools, we teach children the importance of being a good citizen, and a significant aspect of becoming an adult is understanding that society will not tolerate certain behaviors.  Children, particularly teenagers, are subject to laws and treated in a different, but appropriate, manner from adults.  

The alternative to this would be far worse.  Students would lack the ability to express themselves without interference from the school system in almost every aspect of their conduct.  If a student wants to express their dissatisfaction with the school or virtually any subject is their First Amendment right to do so.  Dissatisfaction from teachers or administrators does not matter.  

Brandi Levy, now 19 years old and no longer a high school student, could potentially change the face of free speech in public schools

Schools already overextend their authority to discipline children in many instances.  Students face significant obstacles in this paradigm, where they have the burden of bringing the legal challenge to courts.  If a school creates a policy which violates the Constitutional rights of a student, the policy will remain in tact unless a student brings the challenge to a court.  Because many parents of children lack the financial resources to hire an attorney nor do they wish to spend the time pursuing the matter, the policy usually goes unchallenged.  If public school officials are unaware of this, I would be shocked.  

I know some people may look at the entire situation and think that the child should suck it up and take the punishment, because it isn’t that big of an issue and the matter seems moot since Levy is now in college.  But consider the application in your own life.  Would any of us accept a $10 parking ticket that we didn’t deserve?  The dollar amount is trivial, but the principle does matter.  No one deserves the deprivation of their rights, no matter how small the issue.

3. Should schools treat athletic team and other extracurricular groups differently than academic students?

For a clean sweep, the answer is ‘no.’  Schools do have the right to establish norms and rules of conduct for sports teams and other extracurricular activities.  The mission of a school does not end with academics.  School sports and other groups exist to help teach students a number of lessons that aren’t quite as palpable in the classroom.  Moreover, schools continually evolve to meet the needs of students beyond the academic, including feeding children and addressing their mental health needs.

The conduct of a student individually can reflect upon the team or group in which they participate.  It can also affect the school and community at large.  If schools create a list of team standards for participants (which is consistent with the First Amendment), then it can punish those who break those standards.  In the instance of Brandi Levy, no one stipulated she violated any of the team standards.

What’s likely to happen?  

The Court will render a decision this summer and it seems likely they will vote to uphold the Tinker without establishing a new standard.  This probably isn’t the decision either side in this case wanted, but it appears likely for a few reasons.

First, the Supreme Court adheres to the principle of stare decisis, the Latin phrase of letting the decision stand.  Precedent is a strong guidepost for the Court and a wise path forward, considering a society needs consistency in determining which standards violate the Constitution and which ones do not.  To simply jettison precedent means abandoning that consistency.  The Court typically only breaks with precedent if it becomes clear that a previous case or decision was made with faulty logic or if society’s views on a particular matter have significantly changed.  Neither of those are true here.

The Court could extend the power of schools to monitor the behavior of students outside of campus, but with six conservative leaning justices, I cannot envision them empowering government intrusion into the private lives of students.  The case at hand also provides an example of how school employees sometimes punish students in ways that seem arbitrary and capricious.

In this specific instance, Levy’s conduct cannot be conceivably seen as disrupting the educational process, something Justice Stephen Breyer pointed out in oral arguments, stating:

… if I look at the case here in the record, is there in the record something that shows that what this young woman did — I mean, she used swear words, you know, unattractive swear words, off campus.

Did that cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off campus did, I mean, my goodness, every school in the country would be doing nothing but punishing.

Breyer, one of the more liberal justices on the Court, appears to indicate that an expansion of the school’s authority would become ridiculously invasive and cumbersome to the school system itself.  He also noted his concern about writing a new standard to replace Tinker

I’m frightened to death of writing a standard.  And Tinker, after all, doesn’t really write a standard. It just says you can’t regulate school unless it substantially disrupts or hurts somebody else.

The Court’s free floating standard (which Breyer was referencing) isn’t perfect, but changing that standard might create more significant problems than currently exist.  

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