Fuck This Cheer In Particular Says The Supreme Court In Decision Upholding Students' Free Speech Rights

Free Speech

from the blowing-tax-dollars-on-juvenile-f-bombs-like-a-boss dept

A high school student’s quest to say “fuck cheer” in a semi-crowded convenience store has reached its end. The origin of this journey — which began all the way back in 2017 — was nothing more than a high school student doing high school stuff.

Posing in street clothes with a friend, middle fingers raised, B.L. took a “selfie” at the Cocoa Hut, a local store and student stomping ground. On top of the photo, B.L. added the following text: “fuck school fuck softball fuck cheer fuck everything.” B.L. then posted the captioned photo—the “Snap”—on her private Snapchat account, where it could have been viewed briefly by about two-hundred and fifty (250) of her friends.

For that, B.L. was booted off the cheerleading team she had very briefly disparaged and suspended from cheer activities for a year. She sued. And she won. A Pennsylvania federal court said the student’s off-campus speech was protected, seeing as it was not provably disruptive and — the court reminded the school — it had occurred off-campus. The school’s limitations of student’s rights didn’t reach that far. And even if the student had agreed to a code of conduct for extracurricular activities, the court said the agreement — one that couldn’t be altered and forced students to give up rights if they wanted to participate in extracurricular activities — was coercive, rather than equitable.

The school appealed. And lost again. The Third Circuit Appeals Court upheld the lower court’s ruling, pointing out that accepting the school’s arguments would encourage administrators to become censors of students’ speech, no matter where that speech occurred.

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.

The school appealed again. And it has lost. Again. This time the loss really counts because this time it happened in the highest court in the land.

The Supreme Court’s decision [PDF] upholds students’ free speech rights, but applies this ruling very narrowly to the facts at hand. But even though the finding is narrow, it encourages schools to err on the side of caution (and students’ rights), rather than simply assume anything that doesn’t fit the facts of this case is acceptable.

The Supreme Court doesn’t go as far as the Third Circuit Appeals Court, which pretty much said all off-campus speech is protected. Instead, it sets out guidelines for when it may be permissible for schools to regulate off-campus speech, such as bullying, harassment, threats, and use of school websites.

The limits placed on schools when it comes to off-campus speech are the following:

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

Schools still have an obligation to respect students’ rights. And only rarely should they expect to usurp a parent when dealing with off-campus speech. Most importantly, schools should teach students to respect free speech rights by… respecting students’ free speech rights. Seems simple enough.

These guidelines are directed at both schools and the nation’s courts. Schools need to ensure they minimize their policing of off-campus speech. Courts need to consider these guidelines when handling cases involving punishment of off-campus speech. There’s no bright line created here. There’s simply a lot more clarification of the issue at hand.

The decision makes short work of the excuses the school offered for its punishment of B.L.’s off-campus speech. Although the school is allowed to punish students for “vulgar speech,” its jurisdiction is very limited.

The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time.

The court says the school also stepped on the student’s parent’s toes by punishing B.L.

B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.

The court also says the “disrupted school” excuse is no better. There was no evidence presented by the school of any disruption other than “5-10 minutes of an algebra class” for a couple of days after the Snapchat was posted.

That’s it. B.L. — more than four years after the fact — wins. So do students all over the United States who now have the benefit of these speech regulation guidelines from the nation’s top court. And it’s all due to the tireless efforts of the little school that couldn’t, Mahanoy Area High School.

(Oh, and if you’re interested, there’s a dissent by Clarence Thomas that should be read in a Principal Skinner “No, it’s the children who are wrong” voice and which basically says that in an era of social media platforms that can be accessed anywhere, students’ speech should have fewer protections, rather than more.)

Filed Under: 1st amendment, cheerleader, free speech, fuck this, off-campus speech, schools, supreme court