The Mahanoy Area School District v BL, which the Supreme Court heard on Wednesday, is a difficult case. And it’s not difficult because it raises the kind of politically toxic questions that often lead judges to retreat to their partisan corners.
Members of the court across the political spectrum struggled Wednesday morning to determine when a school district can discipline students for speeches they are attending when they are out of school or doing some school-sponsored activity. The question has now become all the more difficult as the internet allows a student to post content on social media over the weekend for all classmates to read on Monday.
The specific problem in BL is quite minor. In May 2017, Brandi Levy was a sophomore high school student who tried herself for her school’s cheerleading roster and failed to form the team – despite being offered a spot on the JV roster. Shortly thereafter, she posted a picture of herself and a friend who was holding her middle finger on Snapchat with the caption “Fuck School Fuck Softball Fuck Cheers Fuck Everything”.
As punishment for the news, she was suspended from cheerleading for one year by the school’s cheerleading coaches.
The reason this rather minor dispute reached the Supreme Court is because it is not at all clear if and when the first change will allow schools to sanction students for speaking off campus.
In Tinker v Des Moines Independent School School District (1969), the Supreme Court ruled that public school students “do not lose their constitutional rights to freedom of expression or expression at the school gate”. However, Tinker also took the view that students’ freedom of speech is restricted in the school context. A public school can punish its students for speech that “would materially and significantly disrupt the work and discipline of the school”.
Historically, for example, students enjoyed full initial adjustment rights when they were not going to school and their rights were somewhat restricted in the school context. When Lisa Blatt, attorney for the Mahanoy Area School District, admitted Sonia Sotomayor to the judiciary early Wednesday, a school could not punish a student for “cursing at home” or “cursing in conversation while attending school” .
However, social media is blurring the line between on-campus and off-campus language, as language that was written off-campus but can still be very disruptive can be seen by almost everyone in a school community. This includes not just a budding cheerleader like Levy, but also a student threatening to kill a teacher online or a group of students participating in a relentless cyberbullying campaign against one of their classmates.
To name a more fundamental case that could have occurred before the Internet, Sotomayor expressed concern about a student who is confronted with a group of classmates on her daily commute to school who tell her, “You are so ugly. Why are you even alive? “
While the court agreed to hear the BL case to clarify when schools should and shouldn’t rule off-campus speech, judges on Wednesday seemed overwhelmed by the size of the issue. Some of them spent the oral argument looking for off-ramps and looking for narrow ways to resolve this particular case without having to work out a single uniform rule of law for off-campus speech.
It’s really difficult to come up with a one-size-fits-all rule for off-campus speech
Some lower courts have tried to develop a single rule that regulates when off-campus speech under Tinker should be subject to limited First Amendment protection. But there is no consensus between these courts. For example, the United States Court of Appeals for the Second Circuit ruled that Tinker applies if there is a “reasonably foreseeable risk that the [speech] would draw the school authorities’ attention to this ”, while the Fourth Circle stated that Tinker applies if there is a sufficient“ connection ”between the student’s speech and the“ educational interests ”of the school.
And at various points during Wednesday’s hearing, Supreme Court members appeared to be floating ideas for their own tests. Justice Elena Kagan, for example, suggested that Tinker is really about “what is necessary for a school’s learning environment”. And so an off-campus speech that causes “fundamental problems” that disrupt this environment can be disciplined by school officials.
Justice Amy Coney Barrett, meanwhile, appeared to pass an alternate test: what if it could be said that language arises within the “school setting” when “the student relates to the school in the capacity of the student as a student”.
The problem with many of these tests is that they are vague – what on earth is a “link” between a student’s language and a school’s “educational interests”? Others seem to give school officials extraordinary power – should a student really be punished for every curse they post on social media just because they can reasonably foresee that those posts will be read by their school principal? Still others do not seem to really solve every problem posed by off-campus speech: For example, it is not clear how a student, in his “student capacity”, behaves when harassing a classmate.
In fact, the task of developing a single test to rule when Tinker refers to off-campus speech proved so daunting that several judges asked if it was even worth trying.
“As far as I can see, I cannot write a treatise on the first amendment in this case,” a frustrated judge Stephen Breyer once admitted.
“I strongly share Judge Breyer’s instincts,” agreed Judge Brett Kavanaugh, adding that the Court “cannot foresee all things that might arise” when the Court tries to write a single universal rule. He suggested solving the case simply by saying that the “first amendment does not categorically prohibit public schools from disciplining students for speaking off campus,” and then sending the case back to the lower courts with perhaps a few vague instructions.
Two possible departures from this case
Some of the judges spent the hearing looking for exits that would allow them to settle this case without dealing with many of the larger questions about bullying, harassment, or threats from students.
One possible diversion would be to claim that Levy’s Snapchat post was so unlikely to disrupt school operations that it was a proprietary language even among Tinker, even if Tinker applies to off-campus speeches. In fact, several judges appeared concerned that the school overreacted by suspending them from the JV team.
“Why is it not different,” Sotomayor asked once, from a trainer who was “personally insulted” to remarks from a student?
Kavanaugh, who has a side stint coaching high school girls’ basketball, described the decision to abandon Levy as “sort of an overreaction by the coach.” Levy, noted Kavanaugh, “has blown off steam, as millions of other kids have when they are disappointed at being expelled from the high school team.”
Barrett suggested that perhaps the whole matter should have been handled through “gentle discipline” such as pulling Levy aside, explaining why her Snapchat post was unacceptable, and leaving him at that.
An alternative approach would be to give schools fairly wide leeway to regulate the language of athletes or anyone else engaging in extracurricular activities – provided the rules are adequately taught to students in advance and the students are not subject to penalties beyond their own Skills beyond participating in extracurricular programs.
“Why does it make no difference that the speech here … was given as part of an extracurricular activity and that the standards there may differ from the requirements required of all students in the school environment? Judge Neil Gorsuch once asked Levy’s attorney, David Cole.
In any case, the BL argument was a confusing mess – as was the mess of cases dealing with similar issues as to when Tinker should apply off campus. And anyone who hoped that the court would formulate a big rule that could apply to any future case will likely be disappointed.
That’s not a bad thing. As should now be clear, these cases are difficult and do not offer simple, one-size-fits-all solutions.