Student speech: Free, or not so much?

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School administrators, staff, and faculty have a legal and moral obligation to act as surrogate parents while children are in school. The legal principle is known as in loco parentis (literally, “in place of a parent”). This obligation includes disciplining students with sanctions whenever their speech or conduct conflicts with school policy. The Supreme Court has dealt with issues concerning student speech rights for more than 50 years, and will do so again on April 28 when the justices hear oral arguments in a case involving off-campus speech.

The case, Mahanoy School District v. B.L. (initials are used because the student is a minor), involves a Pennsylvania high school student, Brandi Levy (who has been interviewed publicly about the case). Frustrated after her coach removed her from the school’s junior varsity cheerleading squad, she posted negative and profane attacks on her school and coaches. She became angry after she failed to make varsity. At the end of her freshman year, she tried out for varsity for next year’s team, but her coach told her she was not ready, and could remain on junior varsity.

After Brandi learned that an eighth grader had made varsity, jumping over her, she posted on Snapchat while off-campus on a weekend. She used profanity to condemn her school and cheerleading coaches. Although the post automatically disappeared after 24 hours, more than 250 people saw it, and reported it to school officials. Her coach then suspended her from the JV for the whole of her sophomore year.

As part of her participation in the cheerleading program, like all members of the team, she signed a code of conduct. It prohibited her from criticizing her school, teachers, administrators, coaches, or team members. The code also banned the use of profanity and posting anything negative on the Internet.

The question for the court is whether school administrators may discipline off-campus student speech.

Case law is unclear because the court has only dealt with on-campus issues. In 1965, some students in Des Moines wanted to wear black armbands in school to express their displeasure about America’s involvement in the Vietnam War. After school authorities learned of Mary Beth Tinker and her brother John’s plan, they told the Tinkers they would be suspended if they wore the armbands. Mary Beth, John, and others wore them anyway, citing the fact that the school allowed students to wear symbols like the Nazi Iron Cross and similar paraphernalia. The court overturned their suspension with the words that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Mary Beth and John Tinker have filed a brief in Brandi’s support.

The court’s decision noted that the First Amendment guarantees student speech rights, even symbolic ones, as long as the words, or in the latter case, armbands, did not cause “material and substantial” disruptions in school activities. Brandi’s post caused no disruptions because she was off-campus and it appeared over a weekend. It was neither threatening nor harassing, just an exasperated expression of her frustration.

The court has also supported school authorities. In 1986, the court upheld the suspension of a student who supported a friend running for a student office but whose campaign speech at a school assembly was laced with sexual innuendos. Two years later, the justices ruled that a journalism instructor could remove articles from a school newspaper if he thought they were inappropriate when students prepared them as part of the official school curriculum. And in 2007, they agreed with a suspension of a student who was part of a school-supervised, off-campus activity when he raised a banner that appeared to endorse illegal drug use.

So, while the court has developed a long line of jurisprudence on student speech rights, all the cases involved speech while a student was on school grounds or at officially sponsored school events. Brandi’s anger confronts two phenomena not at play in the earlier cases: The Internet was not involved in past cases, nor were social media as pervasive and intrusive as they are today. Snapchat only began in 2011. 

The question remains: Can school authorities reign over off-campus student speech even when school is not in session, the same way they do when students are within “the schoolhouse gate”? What standards should the justices use to determine the outcome of this problem?

The justices’ decision will affect every public school student in the nation, including the almost 700 attending the Island’s high school.

Jack Fruchtman, an Aquinnah resident, taught constitutional law and politics for over 40 years.

1 COMMENT

  1. We have gone way beyond what Mr Fruchtman is outlining. We dont have free speech anymore in most schools and universities. Indeed young people are shamed if they do not support the current wisdom and often fired from jobs. If you are not woke, dont support BLM, you are by definition a racist and certainly of white privilege. This has overflown from schools into public life and corporate life as we witness corporations cower to BLM. Cancel culture manifests boycotts of anyone who isnt marching jackboot to the prevailing orthodoxy on transgenderism, systemic racism and all the malfeseance the US has perpetrated on the world at large. No one is insulated; disagreement is not tolerated and hate speech is so bradly defined it has lost all meaning. In today’s world where media – print, broadcast and electronic – bombard us with their data and beautifully presented opinions, it becomes even more difficult to discern truth. We tend to live in an echo chamber where we are exposed more and more (through the alchemy of algorithms) to opinions and stories that reinforce our points of view and convince us even more that we are right and the other is the enemy that needs to be feared and stopped.

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