WASHINGTON—The U.S. Supreme Court’s nine justices descended recently from their legal ivory tower, so to speak, to tackle a free speech case important to at least 50 million students—and their schools and parents, too.
That’s how many students are in K-12 public schools, ruled by administrators and local school boards. And that’s at least how many could be affected by the court’s ruling in Mahanoy Area School District v B.L., a major First Amendment case testing whether schools’ curbs on students’ free speech stops at the schoolhouse door.
In the Tinker case in 1969—where the court ruled the Des Moines, Iowa, schools could not suspend students for peacefully wearing black armbands protesting the Vietnam War—the justices said it did. But that was before the age of the internet, Facebook, Twitter, and other social media, all of which can affect a student’s experience in school, even if the tweets, chats, and other communications occur outside it.
It did in this case, initially, boomeranging against B.L.—Brandi Levy.
Levy was 14, a junior, honors student, and a junior varsity cheerleader at her Pennsylvania high school. She expected promotion to the varsity squad, except the coaches skipped her and promoted a first-year student instead.
Upset, Levy let loose with a tirade that weekend, repeating obscenities directed at the school, cheerleading, and the coaches. She was off campus, and on Snapchat, which didn’t exist in 1969. The administration found out about it and disciplined her. Levy’s parents contested that through various channels and lost. Then, represented by the Pennsylvania ACLU, they took the case to federal court on free speech grounds and won.
Citing Tinker, the 3rd U.S. Circuit Court of Appeals in Philadelphia said school control over any student’s First Amendment free speech rights stops when the student leaves the building. The school district said it doesn’t and took the case to the Supreme Court on April 28.
There, Justice Brett Kavanaugh summed up the school board’s stand by asking its attorney, Lisa Blatt: “Your approach would be to just say the Tinker standard” from 1969 “applies regardless of the precise location of the speech? Is that enough?” Blatt replied: “That’s absolutely enough.”
To the ACLU’s bemusement, almost every friend-of-the-court brief, even from the radical right, sided with them, Levy, and her parents. One exception: Other school boards. Another: The National Education Association.
The bottom line for the teachers union was that regulating students’ speech only when they are in school is too rigid and too narrow in the current day.
Since 1969, “both the outlets for students to speak”—social media—”and potential sources of disruption to schools have become more diffuse and more powerful.” Students can “harness the power of the internet to speak and explore ideas,” but “schools must contend with cyberbullying, online radicalization, and threats of gun violence at school.”
Which means, NEA said, the circuit court got it wrong. “Off-campus student speech that occurs online may be targeted directly at the school environment,” and the school system should have the right, and responsibility, to regulate it. It can even be more disruptive and more harmful than speech at the school itself, the teachers union warned.
Online, NEA explained, “students may be communicating the warning signs of school violence or engaging in cyberbullying and harassment of other students or educators…. The unifying principle…is the need to protect proper functioning of” schools, “regardless of the source and nature of potential disruptions.” That was Blatt’s argument to the justices, too.
“Off-campus speech, particularly on social media, can be disruptive,” Blatt told Justice Clarence Thomas. “When it comes to the internet, things like time and geography are meaningless, and it makes absolutely no sense whatsoever to say the same speech is somehow within the school’s regulation if it’s one foot on campus or one foot off campus or at the Starbucks or at the CVS or in your car or on the school bus. The internet is ubiquitous.”
Blatt admitted the 1969 Tinker case doesn’t let school boards censor all student speech all the time.
“Schools cannot target political and religious speech. Tinker applies off campus only when the student targeted both the school audience and a school topic.” That means, Blatt said in a running dialogue with several justices, schools can step in and discipline students whose online off-campus speech would cause “major disruption.”
“Kids say, ‘We’re going to riot if that kid walks in with a Confederate flag,’” Blatt told Justice Neil Gorsuch. “You suspend the kids who threaten to riot. You don’t suspend the kid with the Confederate flag.” But then Blatt told Justice Elena Kagan context is everything. If students walk in with Confederate flags “in the context of race riots,” the flags become “fighting words, not protected by the First Amendment.” And the students with flags could be suspended.
In its brief, NEA hit that point, too. Schools can’t exercise total control over all student speech online, outside of school, it said. They can only step in only if student speech threatens school “disruptions that are truly ‘substantial.’”
And Tinker “does not permit viewpoint discrimination or restrictions of off-campus speech that addresses matters of genuine political, social, artistic, and religious importance,” NEA elaborated.
The First Amendment’s free speech guarantee covers students outside school, said ACLU attorney David Cole, speaking for B.L. and her parents. There’s one narrow exception, he conceded: School officials could “punish speech based on its content if listeners object or might object in a disruptive fashion.”
“At its core, the First Amendment prohibits content discrimination. Its bedrock principle is that a speaker can’t be punished because listeners object to the message.” But schools can limit student speech inside the buildings “for a special reason, the special characteristics of the school environment,” Cole explained.
“So schools can prohibit pro-drug messages at school but not elsewhere. They can ban profanity at school but not at home. So too they can punish disruptive speech at school but not at a convenience store on the weekend.”
Expanding the schools’ control to students’ speech on the internet “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.
“It would also directly interfere with parents’ fundamental rights to raise their children. A father shouldn’t have to worry that if he brings his daughter to a Black Lives Matter protest about mistreatment of a Black student at school and she posts a photo on Facebook, she might be suspended based on potential disruption at the school,” said Cole.
He then told Chief Justice John Roberts even the First Amendment would let the school step in if student off-campus internet speech created harassment, bullying, or worse.
“If it is harassing, it is fear and pervasive in a way that interferes with equal access to education, they (the school) can take action, consistent with the First Amendment. If it is bullying severe or pervasive enough to interfere with access to education, they can take action, consistent with the First Amendment. If it is aiding or abetting cheating, they can take action, consistent with the First Amendment,” Cole elaborated.
The Coalition of Labor Union Women joined a friend-of-the-court brief from various women’s legal and civil rights groups. It was on-the-one-hand-on-the-other-hand, too, literally.
“On the one hand,” girls, LGTBQ kids, students of color, and students with disabilities “are especially vulnerable to bullying, harassment, and threats from their peers, which can interfere with their ability” to learn. “If schools cannot regulate such speech simply because it occurs off campus, these students will be left unprotected.
“On the other hand, if schools have broad or unfettered authority to regulate off-campus speech… students from these groups are more likely to face even greater rates of unwarranted discipline. This could include discipline for speech on controversial topics or that may be labeled as ‘defiant’ or ‘disrespectful.’” And the discipline could be biased, too.
CLUW and company wound up urging the justices to let schools “respond to bullying, harassing, and threatening student speech wherever it occurs.” But they want the court to ban schools from censoring “off-campus speech merely because it may be perceived, in some nebulous way, to disrupt school activities.”
The justices are expected to rule on the case by the end of their term on June 30.
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