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.  

Three Observations on Education

After nearly 18 years of teaching in public schools, I have learned a great deal about myself, my students, and the deeper values of education.  This work simultaneously provides me with some of the lowest points in my life, and some of the highest hopes for the future.  To say it is a strange line of work would be an understatement.  In most instances, the frustrations which develop in the lives of most teachers do not come from the children.  

One would presume that adults (especially educated ones) care about children and education.  Yet, that often does not seem the case in the United States, particularly in West Virginia.  Adults really do ruin everything.  I want to present three major observations about education and the problems this field faces.

Socioeconomic status of students and their educational achievement are strongly correlated.  In the United States, research demonstrates these factors are connected and one of the best ways which this nation can improve the education of its children is to effectively reduce poverty.  Of course, people of good conscience may disagree over the best way to reduce poverty, but at this point, the relationship between educational achievement and wealth is almost undeniable.

No one is or would suggest that people without wealth are incapable of learning, but these children often face obstacles which are unnoticed by society.  Children from low-income families worry about the lack of adequate food, clothing, and shelter.  A lack of money also causes friction within a marriage and those arguments create collateral damage in the lives of children.  

This also leads us to an uncomfortable fact that a large achievement gap exists between black and white children in America.  This should not surprise anyone when we consider the wealth gap between black and white Americans.  It is important to recognize that these are correlations and yes, a critic might argue the gaps in education, wealth, etc. go beyond this simple solution of: fix poverty, fix education.  I agree with that statement.  Complex problems rarely have simple solutions.  However, one cannot explain away this data as merely coincidence.  

In West Virginia, more than 10,000 students are documented as homeless and aside from that figure, almost 10% of the state’s students live with someone who is not a parent (which leads the nation).  The instability in the home lives of West Virginia’s children has further consequences, including chronic absenteeism.  This only further erodes learning and the achievement gap.  Currently, West Virginia has 11.8% of Pre-K through grade 3 students missing 18 days or more of school in a given academic year.  (Addendum:  the early years of education are far more critical.  Studies show that children who are more than one grade level behind by the time they reach grade 6 typically never make up that gap.)

West Virginia’s poverty rate stands near 18%, which means we are one of the poorest states in the Union.  Only Louisiana, New Mexico, and Mississippi have rates worse than ours.

Poverty rates across the United States

When we look at educational achievement, according to the National Assessment of Educational Progress (NAEP), it’s almost a mirror image of poverty rates.  West Virginia, Louisiana, New Mexico, and Mississippi rank in the bottom five of both categories.  

Minnesota, for instance, has one of the nation’s lowest poverty rates and nearly the highest rate in NAEP test scores.  Are we to believe that the children of Minnesota are somehow inherently smarter?  Or perhaps their teachers far exceed those of our own state?  Of course not.  

The teacher in the room matters more than you might think.  Research demonstrates that the most important component in directly affecting educational outcomes is the effectiveness of the teacher in the classroom.  Good teachers make a difference in the teaching of the material but do far more than that.  According to research done at Stanford University, the importance of a solid teacher extends to the encouragement of positive behaviors, including decreasing student absenteeism.

Bearing this in mind, how does the United States, and in particular, West Virginia, treat teachers?  Not very well.  We do little to incentivize education as a prioritized profession in our society.  

Teachers do not receive pay commensurate to their degree of education.  Nationally, the average teacher salary is $60,477 and in West Virginia, the average salary statewide is $50,238.  This state pays $10,000 less than the national average, and that gap actually narrowed thanks to two teacher strikes in the last four years.  

A recent study by the Economic Policy Institute (EPI) suggested that teachers make 21.8% less than those with similar levels of education in other professions.  The study also revealed that when adjusted for inflation, teachers in 2018 made less money than in 1996. 

Beyond compensation, government at all levels seems to be unable to provide any incentive for young men and women to seek out jobs as educators.  Popular culture has turned education into a joke, where people who teach in public schools somehow never amounted to anything in life.  Television, film, and literature can have a profound effect on the way society views any person, object, or in this case, a profession.

Think of all the cartoonish caricatures of teachers and principals we have seen in the last 30 years.  Saved by the Bell gave my generation the lovable goofball Mr. Belding.  Ferris Bueller’s Day Off portrayed a clever teenager running circles around the dimwitted Mr. Rooney — and who can forget Ben Stein’s classic monotone voice explaining to a glazed over class “voodoo economics”?  Do we need to remind anyone of the jerk principal in The Breakfast Club?  Hollywood has slowly ebbed away at the respectability of the profession.

Mr. Feeny isn’t as good as you think … look at the assignment in the background

Society has somehow changed the nature of how we view teachers.  Teachers do not feel a general sense of respect from the community at large.  Polling data reveals teachers are justified in feeling this way.  The data from Gallup reveals a few interesting trends about public education in America.  For instance, in 1975, 62% of respondents stated they had either a ‘great deal’ or ‘quite a lot’ of respect for the institution of public schools.  In 2019, only 29% of Americans had the same level of respect for public schools (the second lowest number on record). 

Disproportionate stress and burnout are the results.  Typically, teachers who leave the profession do so within five years, but studies also show that teachers typically need five years to maximize their effectiveness in the classroom.  They leave just when they’re hitting a groove in terms of their abilities but the other nonsense drives them out of the classroom.

So why do they leave?  

1. Petty tyranny and bureaucratic madness.  Schools are increasingly asked to take on more responsibilities and ultimately, those jobs trickle down to teachers.  Tasks are piled on to the plate of teachers while nothing is ever removed.  Aside from instruction of students and associated tasks with that (lesson plans, research, etc.), schools expect teachers to attend and work extracurricular events, counsel students about behaviors, collect money for various items, chaperone school events, make contact with parents in multiple ways, look for signs of mental health problems or any abuse, or any other number of record keeping and secretarial tasks that end up taking time away from actual instruction.  The West Virginia State Legislature has routinely added more responsibilities to public educators or dictated what we should or should not teach.

Is this a European monarch or West Virginia lawmaker? Hard to tell the difference anymore

Currently, West Virginia’s lawmakers are passing policies in the 2021 Legislative Session which lack support or input from educators, peer reviewed studies, or have any coherent logic.  (That’s another post in its entirety, but educational professionals do not want people with no experience in the field micromanaging their work.)

2. Lack of support from parents and the public.  Simply put, many parents believe their children over teachers.  They do not implement consequences at home, and this undermines the authority of educational professionals.  In the instance of West Virginia, the lack of strong parental authority and a safe environment mean that children lack the guidance they need to right their behaviors.  

In the past, other community members would often help provide guidance to children, but the loss of schools as a community institution seems to have a negative impact on the ability of others to help.  Consolidations have placed new schools in areas outside of towns and residential areas.  From my experience, adults living in areas are less likely to support these schools unless they have children attending them.  

3. Underfunded schools.  While teacher salary and lack of social supports create problems for teachers, a significant number of schools lack the resources necessary to provide students with a complete education.  The United States Department of Education has an annual budget of approximately $74 billion, which might seem like quite a bit.  When one considers the federal government spends nearly $4 trillion in a given year, the amount spent on education is a pittance.  This becomes more apparent when we consider defense spending receives ten times the funding of education. Everyone realizes defense of the nation is a priority but, by comparison, education receives such little funding.  

Critics will claim that “throwing money at the problem” will not cure the issues in American schools, and they are correct.  Money by itself doesn’t correct problems, but not having the financial resources to pay teachers, provide adequate supplies, and build proper facilities translates to educators struggling to keep the ship afloat. 

People misunderstand the purpose and mission of educational institutions.  In terms of human history, widespread educational programs are relatively new.  And we should continually ask ourselves about the purpose(s) of these institutions.  What do we want our children to learn and why?  

A segment of society believes schools should exist solely for job preparation, but this is not the case, nor should it be.  The purpose of education ought to be the cultivation of thought and intelligence, the development of moral character, and the devotion to helping children reach their fullest potential.  If society can do those things in a child, then they will be ready for the workforce (which often requires on the job training anyway) and it won’t matter how technology changes. 

Have schools become too fixed in their curriculum and educational strategies?  Perhaps so, but schools routinely receive questions from parents and children framed around the idea of “When will I ever need to know this as an adult?”  When someone asks that question, it feels tantamount to an accusation.  It’s as if someone is saying to a teacher, “You don’t know what you’re doing.”  

Exercising the mind is not altogether different from exercising the rest of one’s body.  We repeatedly do physical exercises in terms of weight training and cardiovascular exercises that do not often equate to real life activities.  “When am I ever going to have to do five rounds of push-ups as an adult?”  Probably never, but if you want your body to look a certain way or to have strength in particular muscle groups, you will do the push-ups.  The same is true for the mind.  Will you ever have to find the area under a curve in real life?  Or diagram a sentence?  No, but the effects on your brain are akin to you bench pressing a metric ton.  Okay, maybe that’s an exaggeration, but you get the idea.  

We want our students to learn core information.  They need to memorize and learn rote activities.  However, education goes beyond simply knowing something.  The ability to think critically about an idea, event, issue, person.  This skill comes from the many little activities, lectures, assignments, questions, and lessons from schools. 

Many believe, as some historians have asserted, that public schools were created to produce factory workers.  I would contend this is an oversimplification of public education and if this was the case, one would be hard pressed to explain the teaching of literature, poetry, languages, science, art, and music.  What purpose does a carefully cultivated and well-rounded person serve in a factory?

The educational aspect of a school does not reflect the additional social responsibilities which I addressed previously in this post.  Schools spend so much time on the ‘other’ aspects of helping children, the academic education of children receives less emphasis than it should.  

While there is always room for improvement in our education system, we still produce so many good outcomes for children.