# High School Student "Free Speech" Case Before SCOTUS **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 28, 2021, 3:07pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931 "2021-04-28T15:07:41Z")\ **Posts on this page:** 20\ **Page:** 19
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 6:39pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/364 "2021-06-23T18:39:12Z")
Even the Supreme Court is [required](https://www.uscourts.gov/about-federal-courts/types-cases/appeals) to hear appeals for certain cases. > There are also a small number of special circumstances in which the Supreme Court is required by law to hear an appeal. ~Max ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 23, 2021, 8:34pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/365 "2021-06-23T20:34:50Z")
> [@UltraVires](#): > > It is incredibly disruptive to the team, your school, your coach, and the community that supports the team. Not to mention the local economy, following the massive surge in demand for smelling salts and fainting couches. The horror! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 8:49pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/366 "2021-06-23T20:49:02Z")
If the relevant rule was confusing after Tinker, I don’t even know what it is now. Schools are now absolutely at sea when determining if and how they can punish students for this type of speech. Alito tries to go into more detail in his concurrence, but then makes this stunning statement: > And here, the school did not simply take B. L.’s messages > into account in deciding whether her attitude would make > her effective in doing what cheerleaders are primarily expected to do: encouraging vocal fan support at the events > where they appear. Instead, the school imposed punishment: suspension for a year from the cheerleading squad > despite B. L.’s apologies. What does he mean by taking it into account? If the coach took her speech into account and decided to cut her because she wouldn’t be an “effective” cheerleader, would that be okay? How is that at all different from what the coach did? Was it because the word “suspension” was used instead of “cut”? I think Thomas has the better of it, but even he goes into the weeds with his analysis of off campus speech which is likely to go on campus. He claims that her speech didn’t make it on campus because the coach only saw a copy of her post. Well, then it did make it on campus! It requires an original?!? Hell, everything viewed on social media is a copy. Just a terrible opinion all around. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 8:56pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/367 "2021-06-23T20:56:16Z")
> [@UltraVires](#): > > Schools are now absolutely at sea when determining if and how they can punish students for this type of speech. The court was explicit in their opinion that schools cannot regulate this particular instance of speech because it _failed_ the Tinker test. That part made sense, at least to me. > [@UltraVires](#): > > Just a terrible opinion all around. Honestly I’m not sure what potential opinion could satisfy you. You’ve argued both sides of the issue in this very thread. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 9:12pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/368 "2021-06-23T21:12:31Z")
> [@Max\_S](#): > > Honestly I’m not sure what potential opinion could satisfy you. You’ve argued both sides of the issue in this very thread. One that actually set forth a test that school administrators could use to determine if they have the legal ability to punish student speech in a particular area. Yes, the Court ruled that under the facts of this particular case, the girl wins, but it leaves so many open questions because of the absence of any foundation or substance. It says many things about harassment or bullying as harming a school but this simply was not it. So that raises the question that if it didn’t cause any harm, why should she be prevented from saying it at school or at cheerleading practice? If you are a lawyer advising a school board whether they can punish a student for speech, excepting this exact fact pattern, what do you tell them to look for? ETA: Also, they seemed to want to continually categorize this as off-campus speech even though it was on social media and all but certain to come into the school just as if it was on campus speech. We debated that a lot in this thread, but the Court didn’t touch it. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 9:21pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/369 "2021-06-23T21:21:28Z")
> [@UltraVires](#): > > So that raises the question that if it didn’t cause any harm, why should she be prevented from saying it at school or at cheerleading practice? _in loco parentis_ is much stronger under those circumstances, as is the disruptive potential, hence the distinction. ~Max ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 23, 2021, 9:22pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/370 "2021-06-23T21:22:37Z")
> [@UltraVires](#): > > It says many things about harassment or bullying as harming a school but this simply was not it. So that raises the question that if it didn’t cause any harm, why should she be prevented from saying it at school or at cheerleading practice? “Harm” isn’t the only justification for preventing a student’s speech. Nobody is “harmed” by talking about the cool video you saw on YouTube, but schools are allowed to punish students who do that in the middle of algebra class. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 9:25pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/371 "2021-06-23T21:25:24Z")
> [@UltraVires](#): > > If you are a lawyer advising a school board whether they can punish a student for speech, excepting this exact fact pattern, what do you tell them to look for? Does the speech materially and substantially interfere with the requirements of appropriate discipline for operation of the school? ~Max, not a lawyer ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 9:25pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/372 "2021-06-23T21:25:32Z")
I’m not talking about actually interrupting the cheer practice. I am talking about before or after when people are milling about and she just says “Fuck this cheer squad.” If the Court is saying that putting it on social media where everyone will eventually see or here about it is not disrupting the school environment, then why is saying it during school hours at a time when it is not disruptive? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 9:27pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/373 "2021-06-23T21:27:19Z")
That’s not very helpful because this school here believed that the answer to that question was “yes.” The Court disagrees but doesn’t promote any test to determine that other than saying that this is not it. That’s my objection to the ruling. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 9:31pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/374 "2021-06-23T21:31:25Z")
> [@UltraVires](#): > > the answer to that question was “yes.” Then we move on to the next question. Is the speech fighting words, obscenity, harassment, libel, or some other type not protected by the First Amendment? (I would list all such types) ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 9:34pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/375 "2021-06-23T21:34:24Z")
Of course it is none of those, but the Court is also careful to say that student speech may be regulated more strictly than adult speech, so that doesn’t answer the question either. And what do you make of Alito’s seeming suggestion that she may be cut from the team instead of suspended? That makes for a meaningless First Amendment protection. It is not stated if the majority would agree with him on that, but they don’t engage on that point. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 9:37pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/376 "2021-06-23T21:37:33Z")
> [@UltraVires](#): > > Of course it is none of those Did the school stand _in loco parentis_ when the student made the speech? Alternatively, does the school have a compelling reason to abridge the student’s First Amendment right to that speech? Note that teaching manners is not a compelling interest for speech made while a student is not under school supervision. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 9:53pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/377 "2021-06-23T21:53:08Z")
And the administrator would say that as she was off campus when she spoke, the school was not acting _in loco parentis_. However, we are back to square one because the school even in this case would have said that it had a compelling reason to suspend her from the team in order to promote group cohesion, team discipline, and team morale, not just to teach her manners. Again, though, the Court said that they are wrong, but did not put forward any reliable way to even guide school administrators how not to make that “mistake” in the future. And the Court just sort of hand waived the school’s justification with little analysis. If an adult was a member of nearly any organization in the country and did the same thing, he or she would have likely been expelled from the organization. Does every organization just act irrationally or out of spite? It seems that if almost every organization in the country would have a good reason to do that then the school would as well. Further, for all of the discussion of compulsory school attendance laws, little analysis was made that this was an optional extracurricular activity, that the school is selective on who it allows to participate in the activity, and it can violate some of your other constitutional rights to be a member of the team. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 10:06pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/378 "2021-06-23T22:06:48Z")
> [@UltraVires](#): > > Alito tries to go into more detail in his concurrence, but then makes this stunning statement: > > > And here, the school did not simply take B. L.’s messages > > into account in deciding whether her attitude would make > > her effective in doing what cheerleaders are primarily expected to do: encouraging vocal fan support at the events > > where they appear. Instead, the school imposed punishment: suspension for a year from the cheerleading squad > > despite B. L.’s apologies. > > What does he mean by taking it into account? He means the school didn’t just decide not to grant a benefit, it decided to enact an explicit punishment. I think Alito had traditional team sports in mind where the coach can just decide not to ‘play’ a student until she is ready, so he may have been thinking you could just bench the girl instead of suspending her from the team. I don’t think that makes sense for a JV cheer squad, which is already the ‘bench’ team and (as discussed above) needs cohesion and discipline to remain safe even during practice, but that seems to be his point. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 10:14pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/379 "2021-06-23T22:14:08Z")
> [@Max\_S](#): > > He means the school didn’t just decide not to grant a benefit, it decided to enact an explicit punishment. The explicit punishment being the decision not to grant a benefit. I find it amazing that the Constitution of the United States forbids suspending a student for this speech, but allows her to be benched for the year. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2021, 10:30pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/380 "2021-06-23T22:30:54Z")
> [@UltraVires](#): > > And the administrator would say that as she was off campus when she spoke, the school was not acting _in loco parentis_ . Well, there. Unless there is an _independent_ compelling reason, punishment is a no-go. > [@UltraVires](#): > > However, we are back to square one because the school even in this case would have said that it had a compelling reason to suspend her from the team in order to promote group cohesion, team discipline, and team morale, not just to teach her manners. Alito went into this early on in his concurrence. We are dealing with a code of conduct in a public school’s extracurricular cheerleading activity. We are not dealing with a general law that says, ‘no minor may participate in cheerleading activities if they use vulgar speech.’ No relevant rule is promulgated by the state to affect students enrolled in private institutions. Cohesion, discipline, and morale as standalone interests are not compelling. Put another way, a state’s interest must be general. The state may not abridge the local newspaper’s right to print some article just because it will undermine cohesion, discipline, and morale in school cheerleading squads. If those were compelling interests the state would have the authority to censor the newspaper accordingly. No, promoting cohesion/discipline/morale/manners only counts when _necessary_ to achieve the state’s objective of ensuring children receive an education. The compelling interest is providing children with an education. Discipline is only a secondary interest, incident to that primary interest of providing an education. ~Max ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 23, 2021, 10:58pm UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/381 "2021-06-23T22:58:10Z")
> [@Max\_S](#): > > Alito went into this early on in his concurrence. We are dealing with a code of conduct in a public school’s extracurricular cheerleading activity. We are not dealing with a general law that says, ‘no minor may participate in cheerleading activities if they use vulgar speech.’ No relevant rule is promulgated by the state to affect students enrolled in private institutions. Cohesion, discipline, and morale as standalone interests are not compelling. That hypothetical statute would almost certainly be unconstitutional as applied to off campus vulgar speech that had no relation to the cheer squad or the school. The state would be infringing on the rights of parents to control and supervise their children outside of school for things not affecting the school. But other than that, I’m not sure why it is significant that this is only a school policy. Of course the state doesn’t set policy for private schools because the private schools themselves set the policy, and the state, when running a school system, by nature must set the policy themselves. As far as cohesion, discipline, and morale not being standalone interests, I’m not sure what you are saying. Yes, they must relate to education. But if the argument is that these are not interests, then under _Tinker_ she should be allowed to say these things in the school environment and to the coach’s face. > [@Max\_S](#): > > Put another way, a state’s interest must be general. The state may not abridge the local newspaper’s right to print some article just because it will undermine cohesion, discipline, and morale in school cheerleading squads. If those were compelling interests the state would have the authority to censor the newspaper accordingly. The school cannot punish the newspaper editor simply because the editor is not affiliated with the school in any way. What would the school do? Suspend him from the cheer squad? That is the way all organizations police themselves. And there are many other cases that hold that even when the state operates an organization, it can use powers that the state itself wouldn’t be able to otherwise use, but only in administering the organization. For example, a state could not tell me that I wasn’t permitted to make a speech critical of Joe Biden, but a state official who was operating a library could tell me that I can’t do it _there_ while disturbing others who are reading. > [@Max\_S](#): > > No, promoting cohesion/discipline/morale/manners only counts when _necessary_ to achieve the state’s objective of ensuring children receive an education. The compelling interest is providing children with an education. Discipline is only a secondary interest, incident to that primary interest of providing an education. I don’t read the Court’s opinion as going this far. Surely you don’t mean “necessary” as in “absolutely 100% necessary without which rule the school would crumble.” If so, the asides about bullying and harassment would be meaningless. You would tell the subject of bullying that we will protect you here at school, but what happens outside of school is not up to us. But if you mean reasonably necessary or “in the wise discretion will promote” then again, we are back at square one because the school here believed that. The Court told them that they were wrong on this fact pattern, but again, did not provide any sort of guidance for what qualifies. A little noted part of the opinion was that B.L. also complained about a freshman making the varsity squad after B.L. was told the year prior that she needed a year on the JV squad first. Everyone would know who she was talking about and didn’t feel that the girl deserved to make the team. How much more to make that “harassing”? What if she had called her a “bitch”? Would that be enough? How much more? The opinion doesn’t begin to tell us or even give any general guideposts. All we know is that this isn’t enough. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 24, 2021, 12:01am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/382 "2021-06-24T00:01:57Z")
> [@UltraVires](#): > > But if the argument is that these are not interests, then under _Tinker_ she should be allowed to say these things in the school environment and to the coach’s face. And she is! _Unless it can be shown such speech materially and substantially interfere with the requirements of appropriate discipline for operation of the school_ - that **is** the _Tinker_ test. Mind you, the school operates to the end of educating children. I suspect there’s some contradiction or circle you are seeing, which I am not. > [@UltraVires](#): > > The school cannot punish the newspaper editor simply because the editor is not affiliated with the school in any way. The state, of course, retains police powers that _could_ extend to censorship of newspapers notwithstanding the First Amendment as incorporated under the Fourteenth. Case in point, obscenity, incitement to violence. So far as the constitution is concerned the school is the state. That is the connection. > [@UltraVires](#): > > And there are many other cases that hold that even when the state operates an organization, it can use powers that the state itself wouldn’t be able to otherwise use, but only in administering the organization. In the case of students the source of these extra ‘powers’ to regulate student speech are, specifically, the implicit powers the state assumes when it stands _in loco parentis_. Take away that standing and the state needs another compelling reason to single out students when it seeks to regulate speech. > [@UltraVires](#): > > For example, a state could not tell me that I wasn’t permitted to make a speech critical of Joe Biden, but a state official who was operating a library could tell me that I can’t do it _there_ while disturbing others who are reading. The state would be well within its rights to pass & enforce a law penalizing patrons of public libraries who cause disturbances with loud speech in designated quiet reading zones, so long as the fine does not run afoul of the Eighth. > [@UltraVires](#): > > I don’t read the Court’s opinion as going this far. Surely you don’t mean “necessary” as in “absolutely 100% necessary without which rule the school would crumble.” If so, the asides about bullying and harassment would be meaningless. You would tell the subject of bullying that we will protect you here at school, but what happens outside of school is not up to us. I don’t think that’s a fair counterpoint. Bullying off-campus can interfere with learning on-campus, because physical and mental afflictions are not shed at the schoolhouse gate. Look at an egregious example: a student who breaks another student’s hand during a scuffle off-campus has materially and substantially interfered with the injured student’s ability to write in-class. Cheating that takes place off-campus materially and substantially interferes with the teacher’s ability to evaluate the efficacy of the student’s education. A direct threat of bodily harm, made off-campus, can intimidate a student into subverting lectures on-campus. &etc. > [@UltraVires](#): > > The opinion doesn’t begin to tell us or even give any general guideposts. It does provide general guideposts, without committing to a general test. pp. 6-8. The opinion speaks of the state’s interest being _diminished_ when it does not stand _in loco parentis_, when the regulation is effective 24/7, and because the state has an interest in protecting minority opinions and the free exchange of ideas. ~Max ---
**Author:** ![Omniscient](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omniscient/32/3290_2.png) [@Omniscient](https://boards.straightdope.com/u/Omniscient)\ **Post date:** [June 24, 2021, 3:07am UTC](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931/383 "2021-06-24T03:07:35Z")
> [@UltraVires](#): > > If the relevant rule was confusing after Tinker, I don’t even know what it is now. Schools are now absolutely at sea when determining if and how they can punish students for this type of speech. Agreed. I stand by my position that the SCOTUS wasted everyone’s time by agreeing to hear this case. They did nothing at all to clarify the law, instead muddying it. [Previous page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=18) [Next page](https://boards.straightdope.com/t/high-school-student-free-speech-case-before-scotus/940931.md?page=20)