On Wednesday, the Supreme Court will finish its current round of hearings with a provocative case on the rights of public school students, and a second case involving a rare examination of the meaning of the Constitution’s Eleventh Amendment. This dispatch will deal with the school case; another dispatch will appear early Wednesday on the Eleventh Amendment dispute. As usual, the audio portions (but not the video) of the hearings will be broadcast on cspan.org/supreme court
Hearing to start at 10 a.m. tomorrow:
Mahanoy Area School District v. B.L.
Background: Americans have been thinking about – and worrying about – the rights of children since at least the 1830s, when Massachusetts became the first state to limit child labor in factories. A “children’s rights movement” has been unfolding ever since then, with different agendas emerging from time to time — ranging from the sympathetic concern of Jane Addams and John Dewey to the creative advocacy of Marian Wright Edelman to the skepticism of Martin Guggenheim.
Children, too, have played roles by doing what children often do – testing the limits of adult authority. And they, or their parents or guardians, have often fought for their rights at school. (So far as those cases involve constitutional rights, they most often focus on public schools, operated by state and local government. Private school students largely depend on specific laws, federal or state, to grant them rights at their school.)
Tomorrow’s first hearing involves a Pennsylvania teenager who was punished at school for the way she protested at being passed over for promotion to the varsity cheerleading squad from the junior varsity. She is identified in the court papers only as “B.L.” because the courts had wanted to protect her privacy as a minor. (Her name is now known publicly — Brandi Levy — because a number of news organizations identified her as the case reached the Supreme Court. Now a student in college, she has given press interviews openly.)
School officials were offended at the choice of language used in expressing her frustration online. Out of a sense of delicacy, one might borrow a description of such remarks by Supreme Court Justice Abe Fortas. In a 1967 case involving a foul-mouthed teenaged boy in Arizona: “It will suffice…to say that the remarks…were of the irritatingly offensive, adolescent, sex variety.”
It is useful to bring up Justice Fortas in another way at this point. In 1969, he was the author of what still stands as the most important ruling ever made by the Court on the First Amendment rights of students attending public schools. In that opinion, in the case of Tinker v. Des Moines Independent School District, Fortas wrote: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Tomorrow’s case involving Brandi Levy of Mahanoy City, PA, is actually a sequel to the Tinker case. This time, the Court is being asked to decide whether that freedom extends beyond the schoolhouse gate, out of reach of the discipline that school officials may seek to impose for speech that they deem offensive. In short, the Mahanoy Area School District’s appeal asks whether the Tinker ruling “applies to student speech that occurs off campus.”
The Tinker decision explicitly involved only student speech on school property. Three students in Des Moines were sent home for several weeks for violating an anti-protest rule when they wore black armbands at school to protest the Vietnam war. Since that decision, the Court has given students varying degrees of free-speech protection – and sometimes denied it — when they spoke out while involved in activities directly related to their schools.
However, the Court had been asked several times over the years to settle whether the doctrine of that case forbids school officials from monitoring, and punishing, speech made away from the school itself or made during involvement in school functions. It had refused to hear a number of test cases on the issue, before it finally decided in January to provide an answer this term.
The Tinker precedent does not mean that anything goes, constitutionally, in student speech. School officials may impose discipline for student expression if they can offer proof that their reaction involved “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
The Court went on to spell out a standard that can justify school discipline: conduct that would “substantially interfere with the work of the school or impinge on the rights of other students.” In that case, the Court concluded, the Des Moines school rule against the anti-war protest “made no reference to the anticipation of such disruption.”
It very likely will be those two words – “interfere” and “disruption” – that school officials in the Mahanoy district will have to spell out for the Justices in order to achieve an extension of the Tinker approach beyond the school property or school activities.
It seems obvious that the farther away an incident gets from school property, the burden of proving an impact on the school’s operation is going to grow. The chain that goes from offensive expression to disruption or interference with the education process would seem to have to be shown to be genuinely connected, link to link. In this case, it seems doubtful that the mere posting of offensive language on a non-school, online platform (SnapChat), normally self-erasing in 24 hours, would provide such a link. And would it provide a link if Brandi and her friend were not personally involved in the chain that took the screenshot to the cheerleaders’ coach? Wasn’t it a mere fortuity that the screenshot wound up in the hands of that coach’s daughter? And how was that coach’s reaction related, if it was related, to the educational process? That would have to be the final link.
Those are significantly complicating considerations, it would seem. Beyond those, a mere recital of the basic facts raises significant doubts about Brandi being personally responsible for what happened after their rather childish act of self-indulgence.
The basic facts are these: Brandi was with a friend in a local convenience store when she posted the challenged remarks in an online platform that was supposed to erase it quite promptly (technology that was foiled, here, when another student who received it took a screenshot of it that ultimately reached the cheerleaders’ coach, resulting in Brandi’s suspension from the team for a year). Brandi and her friend also posted a selfie of themselves, each holding up a demonstrative middle finger.
Objecting to Brandi’s treatment, and pursuing a claim that her First Amendment rights had been violated, her parents (Lawrence and Betty Lou Levy) sued the school district. Brandi’s name is on the case, too, but as a minor she would not have been allowed to sue on her own behalf.
It is possible that the Court might go no further than to decide that school officials may have it within their power to discipline off-campus speech, and perhaps to provide some guidance that goes beyond the test laid out in the Tinker opinion, and then return the case to lower courts to apply that standard to the incident in Mahanoy City.
Whether or not the Justices were themselves offended would not seem to be a factor in their decision; the issue before them is, after all, a matter of law, not of taste.