America’s right turn

“The pendulum goes too far to the right, it’s going to swing back. The same thing too far to the left.”

— Ruth Bader Ginsburg 
Anti-abortion activists celebrate the Dobbs ruling

The Supreme Court just finished a wild term, capping it with the announcement that it would overturn Roe v. Wade.  This touched off protests, rallies, and a social media dumpster fire unlike anything in recent memory.  The decision also prompted a flurry of legislative changes which banned abortion in numerous states.  

In Dobbs v. Jackson Women’s Health, the Court determined that women do not have a right to an abortion.  This, of course, overturned the precedents established in Roe, and later in Planned Parenthood v. Casey.  

Considering this ruling and the makeup of the Supreme Court, Americans should give serious pause to what their rights are.  Of course, this should always be a question for Americans to consider, but the issue seems more salient now.  

What are my rights?

American rights are both clearly defined and nebulous.  How can this be?  Well, it’s complicated.  The United States Constitution, in addition to establishing how the federal government operates, lists the rights we have.  For instance, the First Amendment guarantees freedom of speech.  The government cannot punish someone for articulating their thoughts on a matter, even if the speech is offensive.  The text of the Constitution establishes other specifically defined rights and limits the government’s authority over the people.

But are those the only rights citizens possess?  Are we limited in our rights?  Not exactly.  The Ninth Amendment of the Constitution states, 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, scholars and lawyers have different interpretations of this, but many agree that it establishes the idea that more rights exist than what are explicitly mentioned in the Constitution. 

Other aspects of the Constitution reinforce the idea that citizens have far more rights than what the Constitution lists.  The Fifth and Fourteenth Amendments guarantee that the federal and state governments cannot deprive a person of “life, liberty, or property, without due process of law.”  What does that word ‘liberty’ mean?   At its core, it is the freedom which we enjoy.  But the freedom to do what?   

Traditionally, the courts have determined these amendments create substantive due process, which protects citizens from arbitrary inference in daily life.  Essentially, if the government wishes to regulate or outright ban an activity, it must have a compelling interest.  

If Congress passed a law which established a nationwide curfew of 9:00 pm, would this legislation violate the Constitution?  Nothing explicitly guarantees citizens the right to stay out all night.  But this would definitely violate substantive due process rights.  What reason would the government have to establish a curfew?  That law would violate the ‘liberty’ guaranteed by the Fifth and Fourteenth Amendments.   

Additionally, some rights are more important than others.  The Supreme Court recognizes these as ‘fundamental rights,’ those deserving of such protection that the government cannot violate these without the most compelling reasons (see:  strict scrutiny).  These are the rights listed in the Constitution along with a few other unenumerated rights, such as marriage, privacy, or unimpeded interstate travel.

And what about about the right to choose an abortion?  In Roe v. Wade, the Court ruled that women could choose to have an abortion under the privacy and substantive due process rights implied by several Constitutional amendments (including the Ninth and Fourteenth Amendments).  Case closed, then.  Right?   

A competing viewpoint 

The concept of substantive due process rights and the Ninth Amendment above has been the interpretation of the Constitution held by many jurists, but it’s not the only one.  A more conservative approach examines the Constitution as protecting only the rights written in the document.  This approach contends that the intention of the people who wrote the Constitution and subsequent amendments holds more weight than contemporary values.  This perspective is known as the ‘originalist’ doctrine.

Originalists have also critiqued the idea of substantive due process rights, claiming the term ‘liberty’ in the Fifth and Fourteenth Amendments acts as a truism with no practical value.  In this concept, federal courts overreach every time they use substantive due process to grant rights.  According to that interpretation of the Constitution, the federal courts are preventing individual states from exercising their prerogative to govern as they see fit.

The ruling in Dobbs represents an example of the originalist model.  The Supreme Court noted that abortion is not a subject broached in the Constitution, nor does the term ‘liberty’ provide a right to an abortion.  This does not mean that states must ban abortions or regulate them.  The Court is not dictating whether abortions are inherently good or bad, but merely that states can establish their own preferred laws about the matter.

The Tenth Amendment provides states the authority to legislate on topics not specifically delegated to the federal government.  The originalist perspective maintains that the strict interpretation of the Constitution gives states and their people the most sovereignty possible, permitting them to create policies they believe best for their region.  If people don’t like the policies, they have the ability to replace their government.

Under this political theory, government officials would operate in a manner consistent with the wishes of the public, lest they be removed from office.  This reinforces the authority of people to dictate public policy.  The will of the people should be paramount and federal courts should not try to dictate what a state can and cannot do beyond what lies within the Constitution.  

Did the Court make the right decision?

The answer to this question depends on two key questions:

1. How should the Constitution be interpreted?
2. Where does life begin?

Should the nation approach the interpretation of the Constitution in a manner which adheres to the original meaning of the text, or should it see the Constitution as a ‘living document,’ evolving with passing generations?

Both sides present solid arguments, but I would argue for somewhere in between.  One of the compelling points for an originalist position is the fact that the men who wrote the Constitution created a mechanism (in Article V) to amend the document, we need not reinterpret the text.  If Americans see something wrong with the Constitution, they should push elected officials for an amendment. 

Again, the originalists see their position as ultimately best serving the people, due to the fact that policy changes would need to come through legislation rather than acts of the courts.  

There’s a problem with this approach, though.  Let’s considerLoving v. Virginia, where the Supreme Court ruled that the state of Virginia could not punish an individual for marrying a person of another race.  The Court held that the Fourteenth Amendment’s substantive due process right of ‘liberty’ included the right to marry a person of any race.  The decision represents a very broad interpretation of the Constitution and human rights.  

If the Court took an originalist perspective, then states would be free to ban marriages between individuals of different races.  Loving was decided in 1967, a time when interracial marriage was not as widely accepted as it is today.  Was the Court wrong to make that decision?  I think they made the correct decision.  

With the originalist logic, states would be free to ban interracial marriage.  Normally, I would dismiss this line of thinking as a slippery slope fallacy.  However, Justice Clarence Thomas wrote a concurring opinion opening the door for concern.  He signaled that cases like Loving and others like it would be on the chopping block.  Thomas wrote,

… in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence, [same sex acts] and Obergefell [same sex marriage].  Because any substantive due process decision is “demonstrably erroneous,” … we have a duty to “correct the error” established in those precedents.

Thomas’ opinion concerns a number of Americans because those cases and others connected with the Fourteenth Amendment represent landmark decisions for a segment of the population that believed these issues were settled.  It also would potentially place citizens under the tyranny of the majority.  Ask racial minorities in the South how that turns out.

Justice Thomas’ words alarmed many this week

What if Thomas’ claim has merit, though?  What if the Court has been deciding cases incorrectly all these years?  He’s certainly not alone in his thinking.  

Thomas might have inadvertently done a favor for our system of government.  Democracies function more efficiently and fairly when citizens take an active role, and Thomas’ words will most likely prompt a greater level of political involvement.  Americans received an important reminder in terms of policies and rights.  Nothing is ever settled.  It’s all subject to change. 

And what about life?  Where does it begin?  The Roe ruling in 1974 established trimesters as key benchmarks in determining at what point a state held a compelling interest in regulating abortions.  The Court’s opinion maintained that when a fetus broached the sixth month of gestation, a state could prevent abortions because it held an interest in protecting human life.  A fetus became ‘viable’ at this point, meaning the child could live outside the mother’s womb.  He or she was alive.  

Since the 1970s, science and technology have moved the needle on viability.  A fetus can live outside the womb at an earlier stage of life.  There’s no reason to believe that medical technology will only improve in the future.  The demarcation of viability feels fairly arbitrary.

This question about the beginning of human life is the great disconnect between liberals and conservatives on this matter.  Those on the left cannot understand how a fetus in the first trimester is considered human life.  In that time frame, the fetus is about two inches in size and not well developed.  If a person only sees this as a division of cells and not a human life, then how can that person be convinced that they are doing anything morally wrong?  Approximately 90% of abortions occur in the first trimester, thus liberals do not view abortions as killing children.

Conservatives look at the development of a fetus in the first trimester and see clear indications of what will become a human being.  The head, arms, legs, fingers, and toes are clearly visible at the 12 week mark.  Eyelids and ears are developing.  Many Americans fail to see how this could be viewed as anything other than a human being deserving of protection. 

I struggle to determine how to best interpret the Constitution.  The Supreme Court undoubtedly has an important role in interpreting what are sometimes vague and undefined freedoms.  For instance, the Eighth Amendment guarantees protection from cruel or unusual punishments.  What  constitutes cruel and unusual differs between individuals now, let alone between generations separated by hundreds of years.  Someone must interpret this, and as the former Chief Justice John Marshall aptly wrote, “It is emphatically the province and duty of the judicial department to say what the law is.”  While consistency matters, we cannot operate solely under the intentions of people who lived hundreds of years ago.

I know that many states will not create policies pertaining to abortion that will not consider the nuances of abortion and why permitting exceptions is better than a blanket ban.  It’s one thing to make an argument that there is no right to an abortion.  But many states will legislate policies which do not reflect the complexity of abortion and this reflects poor policy making from Republicans.

In answering the question of life, I find myself at a loss to see a fetus as anything other than human life.  Does life begin at conception?  I believe it does.  And maybe somewhere, science will prove me wrong.  However, it does not stand to reason that we should judge the humanity of a person based on their developmental stage.  Is the life of a fully grown adult more valuable than that of an infant child because he or she is more developed?  In fact, society greatly values protecting the most vulnerable ahead of others.  Unborn children are the most vulnerable.

There are gray areas

Critics of my position would correctly point out that situations exist where an abortion would be appropriate.  Some pregnancies are referred to as ‘ectopic,’ meaning the fertilized egg rests somewhere other than the uterus.  In most of these pregnancies, the egg is stuck in the fallopian tube, meaning the pregnancy cannot proceed.  According to information from the Mayo Clinic, these fertilized eggs cannot survive.  Not removing the egg can threaten the life of a woman.  This is a situation where ending the pregnancy is vital.  

When stillbirths and miscarriages occur, the same medical procedures often necessary to perform an abortion are used to remove fetal tissue.  The law should properly distinguish between a necessary medical procedure and an elective abortion.

While creating exceptions is the right path forward, it’s important to note that they are indeed exceptions.  Cases of medical complication, rape, and incest rank low on the reasons women choose to have abortions.  The most commonly reported reasons include “Having a baby would dramatically change my life” and  “Can’t afford a baby now.”  I don’t believe these qualify as legitimate reasons for ending a life.  

A jolt to the system

The Dobbs case will have implications beyond abortions laws.  Overturning Roe v. Wade represents a significant shift in policy which stood for half a century.  When dramatic changes like this occur, people react.  

This decision will lead to a significant increase in political involvement.  Pro-choice supporters have organized rallies and protests in virtually every major urban center in the country.  Interest groups and candidates supporting abortion have received increased financial support since the beginning of May, when the Court’s opinion in Dobbs was leaked.  Americans also have poured in millions of dollars to the Democratic Party in the last month.  Now that Roe has officially been overturned, the donations will only further increase, particularly in light of the fact that mid-term elections are only a few months away.  Expect a significant increase in voter turnout, also.  It’s the one form of political participation most Americans actually do at some point in their life.  The 2020 Election saw the highest presidential turnout in decades.  Mid-terms usually have a much lower participation rate but Americans now realize the stakes are higher than what they previously believed.  Coupled with active political participation, Americans will start considering the importance of better defining what rights people ought to have. 

Finally, this past week represents an American right turn.  In addition to Dobbs, the Court announced four other rulings which demonstrate a conservative shift, all 6-3 rulings decided along ideological lines.

  • Religious issues were the focus in Carson v. Makin, where the Court ruled that Maine could not deny tuition assistance to private religious schools as part of their voucher program.  It amounted to a violation of the Free Exercise Clause in the First Amendment.
  • In Kennedy v. Bremerton School District, the Court ruled a school district could not fire a public high school football coach for praying on the field after games.
  • With Vega v. Tekoh, the decision denied a citizen the ability to seek restitution for a violation of Miranda rights.  Police questioned Terrence Tekoh before informing him of his rights and after Tekoh’s acquittal in criminal court, he sought to sue the police for violating his Fifth Amendment rights.  The Court claimed he could not sue for such a violation.
  • The Court also took on gun rights in New York State Rifle v. Bruen, where the majority opinion struck down New York’s gun law, which did not allow citizens to publicly carry a firearm without first proving a special need.

Clarence Thomas is the oldest member of the Court, at 74 years of age (not counting Justice Stephen Breyer, who is retiring at the end of this term).  Considering past justices and their careers, it might be another 10 years before any seats open on the Court.  This paints a dismal future for the left, particularly if they don’t win presidential elections in the future.  

The left has long underestimated an important aspect of the political vibe in the country.  Nearly half of America’s voting population holds either conservative values, or at the very least, they aren’t liberal.  According to 2020 exit polls, 38% of voters claimed they were conservative, 38% said they were moderate, and only 24% were liberal. 

These same voters, presented with the question about the legality of abortion, were fairly split.  Approximately 51% stated it should be legal, while 42% said it should be illegal.  Moreover, Americans’ beliefs on the matter have remained fairly split over this issue since the Roe era began.

Looking at the data on most subjects, a substantial portion of conservative positions strike a chord with the American public.  Immigration, drug policy, environmental regulation, guns — pick an issue and there are more conservatives out there than the left wants to believe.  The problem is that the left believes they have a stronger ideological position than they do.  

Conservatives principles have long existed and they have consistently fielded support from large portions of the population.  Liberals have overlooked this population or simply disregarded them as a vocal minority.  It’s one of the reasons why Donald Trump managed to finagle his way into the White House.  

Like it or not, the pendulum is moving to the right.

No, Biden isn’t a tyrant, and yes, the mandate is legal

President Joe Biden took a significant step in combatting the COVID-19 virus this week by utilizing the significant amount of executive power his office permits.  However, is it a wise policy?  Does it violate constitutional rights?  Is Biden acting like a king or dictator?  These are a few of the questions worth exploring.

What exactly is the Biden administration doing?

President Biden delivering his message about vaccine mandates

The president’s role as chief executive requires him or her to carry out the laws passed by Congress.  When our legislative body creates a law, they sometimes purposely leave portions of it vague to allow the executive branch flexibility in how to best carry out the law.  For instance, with regard to the Social Security program, the law does not dictate in what way payments are made to recipients.  This allows executive branch officials to determine if they should send checks, use direct deposit, or even consider other digital programs.  The flexibility allows for efficient functioning of government.  This much is clear — when the law does not specify how a law should be enforced, it is the prerogative of the executive branch on how to enforce that law (provided they do not violate the Constitution in the process).  Presidents cannot simply give random orders unless they are based on an already existing law.  They cannot enforce what does not exist.

In this instance, President Biden is utilizing the Occupational Safety and Health Administration (OSHA) to implement policies based on the Occupational Safety and Health Act of 1970.  This law established OSHA and empowered the Secretary of Labor and the Director of OSHA to create policies under the law to ensure the safety of the workplace in the United States.  Since the Secretary of Labor works at the pleasure of the president, this person has a responsibility to develop policies which the president wants.  

In this case, the Secretary and OSHA will be writing new regulations which

  • Require all private employers with 100 or more employees to ensure those employees have received vaccination for COVID-19 or those unvaccinated employees must produce a negative COVID test one each week.  This new rule is expected to affect nearly 100 million workers in the country.  The penalty for non-compliance will be $14,000 per offense.
  • All healthcare facilities which receive Medicare or Medicaid reimbursement from the federal government must have its employees vaccinated.
  • Employees of federal education programs such as Head Start or Department of Defense schools must receive a vaccine.

Additionally, President Biden ordered the Transit Security Administration (TSA) to increase fines for individuals who failed to wear masks and for those abusive towards flight attendants.  The federal government is also planning on allocating $2 billion for testing (rapid test and PCR).

Outside of the requirements, President Biden also asked for governors of individual states to establish mask and vaccine mandates for their public education systems.

Is there any precedent for a vaccine mandate?

The United States has faced a few similar situations in the past.  In the early 20th century, Massachusetts enacted legislation which required vaccination for smallpox for all adult citizens and fined those who refused.  Henning Jacobson, a Swedish immigrant, refused and appealed the matter to courts, claiming the Massachusetts law violated his 14th Amendment rights under the Due Process Clause.  Jacobson’s argument contended the state’s action in mandating a vaccine deprived him of his ‘liberty.’  In the Due Process Clause, the state must demonstrate some rational basis for why they would take deprive someone of a freedom.  In this instance, Massachusetts claimed that eradicating smallpox and creating a better public health environment constituted a legitimate government interest in mandating a vaccine.

In Jacobson v. Massachusetts (1905), the United States Supreme Court ruled that the state legitimately held policing powers, which included, “… such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  The Court stated that issues such as a public health crisis, particularly the increasing cases of smallpox at the time, override the liberties of Jacobson.  

Justice John Marshall Harlan also articulated a key principle which many Americans forget about the freedoms granted to us.  Harlan wrote,

… the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.

Despite what people might want to believe, there is no absolute freedom in our society

In 1922, the Supreme Court also upheld the constitutionality of mandatory vaccines for public and private school students.  While states are under no obligation to create such vaccine mandates, the Court noted that such mandates did not violate the Constitution (see: Zucht v. King).  Society has long accepted vaccinations as a key aspect in public health and the fight against serious disease, and this is one of the reasons we haven’t seen a significant challenge to this concept in nearly a century.

Every state requires vaccinations for school, and West Virginia provides no exemptions for personal or religious belief. Required vaccinations are not new

Federal courts at all levels do not appear in any mood to overturn precedent.  Students at Indiana University filed suit after the school required a COVID-19 vaccine for all students and staff (with a few exceptions carved out).  A federal district court and the 7th Circuit Court of Appeals ruled that Indiana held the authority to require the vaccines.  The Supreme Court turned down an appeal for an emergency injunction (which could have temporarily halted the mandate until the matter was resolved in its entirety).

The Biden administration’s new rules seem solidly grounded in legislation, and the president seems confident that any legal challenges would fail.  When asked about those potential legal challenges, Biden responded to critics, “Have at it.”  

Why is this happening now?

For the Biden administration, this seems to be a move that makes sense for a number of reasons.  First, the vaccination rates of Americans have plateaued over the last few months.  Despite financial incentives and massive public relations campaigns, states have struggled to increase vaccination rates. 

The unvaccinated Americans also have taken the position that they have seen what COVID-19 does and they don’t seem to mind the risk.  While doctors and other health care professionals recommend taking the vaccine, a substantial number of Americans don’t feel comfortable taking it.  The stagnation in vaccination rates has led to the rise of the rise of the ‘delta’ variant of COVID.  The mutation of COVID makes it more difficult to defeat in the long term.  

Infections, hospitalizations, and deaths related to the virus are increasing, and this is a public health problem, obviously.  However, there is undoubtedly political calculus behind the vaccine mandates.  

President Biden and his administration have a razor thin majority in both houses of Congress right now, meaning their ability to pass legislation is limited.  Democrats are delicately trying to pass a bipartisan infrastructure deal while simultaneously threading a budget bill through Congress.  The Biden administration must deal decisively with problems which can be solved with executive action only.  They can solve this problem without Congress, so they must.  There’s no time to waste, particularly considering that the 2022 mid-term elections will be coming soon.

Democrats want to head into the 2022 mid-terms with legislative victories in their pocket and light at the end of the tunnel when it comes to solving the pandemic.  President Biden’s approval numbers have taken a hit with the American withdrawal from Afghanistan and COVID problems.  His average approval rating is trending in the high 40s, but that’s down significantly from the beginning of summer.  

The vaccine mandate is a calculated gamble to solve an important problem for the nation.  Is it a ‘make or break’ moment for Biden’s presidency?  No, but the political benefits outweigh the risks of not acting.  Within West Virginia, Governor Jim Justice is lamenting the rise in infections but he refuses to take any action as our state’s chief executive.  He has continually passed the buck to county and local administrations, causing significant confusion with absolutely no positive results. 

If the increase in vaccinations with these federal mandates can stymie the COVID problem, Biden will look incredibly good in the eyes of voters for taking decisive action at a key moment in the pandemic.  The people most likely to claim that Biden is a ‘tyrant’ who has overstepped his authority were never going to vote for him anyway.

Biden is not a tyrant, dictator, king, or any other authoritarian trope 

Americans have a strange way of viewing presidents, particularly ones who take strong executive actions.  The use of executive orders or government agency regulations to shape policy always tend to cause selective outrage.  Presidents from both parties utilize these as means of achieving their goals.  They are far more common than what people realize.  Yet, Americans only complain about them when it’s a political foe in the White House.  

Legislative bodies benefit from debate in lawmaking, and a slowed process.  However, situations exist in government where quick, decisive action is warranted.  Our chief executive needs that flexibility in responding to situations in such a manner.

The American presidency does more in permitting one single person to exercise power than any other democracy.  It fuses the role of head of state and head of government where most nations divide those roles.  In his famous Federalist #70, Alexander Hamilton wrote that our republic needed an ‘energetic’ president for effective administration of the laws.  The energy included several characteristics, including unity (a single person acting as executive) and competent powers

Powers exhibited by the president, whether Biden or Trump or anyone else, must still obey the Constitution and comply with other existing federal laws.  Their actions are subject to review by the courts, and they are ultimately responsible to the people.

Hamilton’s work also contained wisdom which explains why Republicans are currently frustrated with Biden’s unilateral action. He wrote, “Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike.”  

Republicans will attempt to seize upon any opportunity to gain seats in Congress and the majority in either house.  And I suppose that’s part of what the minority party does, particularly when the difference in the number of seats in both houses is so small.  A person can question the wisdom of President Biden’s policy.  But to suggest the president is somehow crowning himself king over the nation or a tyrant?  This is an attempt to play on the fears of Americans.  Don’t fall for it.  

I find it equally frustrating that Republicans have taken their hypocrisy to new levels when they have suggested for the entirety of President Biden’s term that he is confused, senile, or incompetent, but now they want Americans to believe that same crazy old codger is somehow launching a secret Marxist takeover of the nation. Could that senile old man have plotted all of this in his fragile mental state? I am convinced that both major political parties in the United States have serious flaws, but Republican leadership continually embarrasses itself in their quest to gain power.

The COVID-19 virus killed 4.6 million people worldwide in the 18 months. The deaths show no signs of relenting unless we take drastic action. In 2020 alone, nearly 378,000 Americans died from this virus, making it the third leading cause of death (behind cancer and heart disease). This nation created a vaccine to tamp down a deadly plague and the refusal to take it is harming society as a whole. We have the ability to end this and return to life as normal.

Critics would argue that government doesn’t dictate what people eat or ingest, which often cause heart disease and cancer, the two leading causes of death for Americans. This is true, but those diseases do not easily spread to other human beings.

President Biden was correct when he stated, “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.” It’s time to end this. If you’re eligible for a vaccine, take the vaccine. It’s safe, it’s effective, and it saves lives.

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.