No, I don’t.
If the question presented is answered in the negative, then no matter what disruption occurs at school as a consequence of the student’s speech, the student him/herself could not be punished for triggering the disruption because the trigger was pulled outside the schoolhouse gate. What error do you see in that?
This is absolutely and unequivocally wrong. Period. Full stop. End of story.
Just out of interest, which particular aspects of the case history, the briefs, or the oral arguments led you to this completely erroneous conclusion?
Well I think you have some faulty logic going on there: once something occurs on school grounds, it is actionable. What more do you need other than the disruption?
Are you envisioning some bizarre plot by a mastermind genius who doesn’t take part in the disruption themselves and somehow would have no culpability despite planning, fomenting and enabling it?
I think you mean “yes”, as you then go on to describe exactly how a school could regulate off-campus student conduct. Once one of students’ First Amendments rights are curtailed while off campus, there’s no expectation that other First Amendment rights will not be curtailed. Schools will have the explicit authority to regulate students’ speech, and the implicit authority to regulate religious behavior, social gatherings, etc. The discipline cannot be arbitrary, but schools will have the authority.
If one of the First Amendment rights of students is curtailed, there is no expectation that other First Amendment rights would not be curtailed. The argument “my right to free speech may be restricted by my school, but my right to peaceably assemble may not be” is not a strong one. Or put in “exercise religion” instead.
That is, the parts of the First Amendment are not separable.
We are kind of drifting away from the case into hypotheticals. Bringing it back, I have to say that I believe the coach was wrong in sanctioning the student with a year suspension vs. a discussion of proper behavior. What I believe is that coaches, adults who are charged with the responsibility of handling groups of youngsters, need the authority to correct bad behavior.
Whether that behavior is underage drinking, bullying, or simple disrespect for others, the when and where of that behavior shouldn’t be a shield from being corrected and understanding that actions have consequences.
Great, and no one disagrees with that. What some may disagree with is whether venting to someone’s friends their disappointment is “bad behavior.”
Those are actually illegal, wherever they take place. School doesn’t need to be involved.
Ah, the must show proper respect? I disagree that being disrespectful is automatically bad behavior.
Like I said, the first two you listed are illegal in all places, so when and where are irrelevant, and the last isn’t something that should be enforced, except in specific times and places.
Okay, so we’re in general agreement, I think. I disagree that the young lady did anything wrong. I don’t think she was being disrespectful nearly much as she was being angry. And people should be able to express their anger just like they should be able to express their joy, IMO.
I agree that the coach missed out on a fantastic teaching moment, one that could have been unbelievably productive for both of them.
And I agree that adults should do what they can do help modify destructive and/or anti-social behaviours; I don’t think that punishment is necessarily the best way to do that. Certainly in this case it seems that the punishment was done to make the coach feel better with no other motivation.
I can imagine a case where a student is recorded along with their family worshipping Satan. If that video went public, then the school could make the argument that that student’s practices are disruptive to the school environment.
So, could you have a “no worshipping Satan” clause for a school’s extracurricular activity?
I would say no, but there are some who would argue that such a practice is disruptive, and not the sort of thing that you would want in a cheerleader. “Do you really to want put our name on someone who worships Satan, and have her represent our school in front of a large crowd?” “They should be leaders, representative examples of good behavior for the other students, not dickbags who are beholden to the lord of darkness.”
There’s so much arguing from “respect my authoritah” going on in this thread, using the school or coach as proxy since no one here actually has access to this teenager to chastise her or ground her or spank her or whatever, but this variation stands out as something especially worth calling out. Let’s imagine future punishments for saying “fuck cheer.” Perhaps a lifetime of stigma! What a shame, I hear some people clucking, but what did she really expect?
Mary Beth Tinker is a respected advocate for student free speech today. Look her up. I wish I were as happy with my life’s work as she seems to be, and doing something as important. She’s a frickin’ American hero.
I couldn’t easily find the Bong Hits 4 Jesus plaintiff’s current status, but he did get a $45K settlement in a separate state lawsuit and in 2008 was teaching English in China, according to HuffPost. I’m sure he’s doing fine too, and if not, I doubt his lawsuit had anything to do with it. (His name is quite common, and there’s been little news coverage of the case since the verdict, but I didn’t try very hard either.)
Free speech cases are significant, and student speech is still a pretty unsettled area. (Unfortunately, it’s like there’s been a one-way ratchet in the direction of schools and districts in recent decades, and I fear it’s going to take another turn here.) Participation in such a case as plaintiff should (usually) be seen as a badge of honor. (Exceptions exist.)
The sort of boss who wouldn’t hire someone because they were once the ACLU-represented plaintiff in a lawsuit about speech rights is probably the sort of boss someone who’s willing to go through all that probably wouldn’t work for anyway.
It’s not about whether they’re separable. It’s about the totality of the holding. Previous cases like Tinker v. Des Moines and Morse v. Frederick have looked at the specific facts of each case and made determinations based on the particular content, type, and manner of expression, as well as the potential impact of the expression on the fundamental operations of the schools in question. Central to the Tinker holding, for example, was an extensive discussion about the potential for material disruption to classwork and other school activities.
Government restrictions on fundamental constitutional rights like speech and religion must pass strict scrutiny, meaning that the regulation must serve a compelling government interest, and the restrictions must be narrowly tailored to meet that interest, without adding excessive burdens to constitutional rights. That’s why it is, to be quite frank, ridiculous to assert, as a blanket proposition, that a victory for the school in this case would allow schools to discipline students for off-campus prayer.
I actually hope that the student wins this case. I think that the school over-reacted, and that her actions were pretty petty and inconsequential. But it is entirely likely that the court will craft a relatively narrow opinion in this case, and whatever opinion we get, it is also very unlikely–indeed, given the current composition of the court, it is almost inconceivable–that we would get an opinion that allowed schools to regulate and control and prohibit basic political and religious expression off campus.
Schools help students model better behavior by making some extracurricular activities contingent on avoiding things like underage drinking. We don’t really like when schools sweep bad behavior under the rug for the captain of the football team, I don’t want that to be the norm for all activities.
As an aside, if she accidentally copied the coach on this snapchat, would the 1st amendment still apply? I imagine it would, but am open to being corrected.
It wouldn’t have to be a bizarre plot. Suppose the student, off campus and outside school hours, posts publicly some hate speech (say, “all of the [insert vulgar epithet] at XYZ High School are morons and criminals who should all be rounded up and sent to the death camp, and most of the teachers agree that they’re worthless [epithet] who don’t deserve to live”). If that post doesn’t identify and target specific named students, that probably doesn’t fall under harassment or cyberbullying laws, and since the student isn’t threatening to be the one doing the rounding up and executing, then law enforcement has no grounds to do anything. Students of whatever group was singled out are likely to be upset, and depending on the racial/political climate of the school, that post could be very disruptive and trigger violence, fights, etc., but our oh-so-innocent blogger didn’t do anything on campus to run afoul of the rules. So, can/should the school have any authority to discipline him|her|it? Why or why not?
Remember that a school that fails to respond appropriately to students being harassed because of race, religion, etc., may itself run afoul of civil rights laws, but what would be the appropriate response?
The question the school district is asking the Court to decide is whether school officials may regulate off-campus speech “that would materially and substantially disrupt the work and discipline of the school.” What kinds of off-campus religious activity are you envisioning that would meet that test?
While underage drinking is illegal everywhere, bullying isn’t necessarily. For example, Nebraska law defines bullying as “any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose by a school employee or his or her designee, or at school-sponsored activities or school-sponsored athletic events.” What in that would cover bullying off campus? (Nebraska does have other statutes covering related behavior such as terroristic threats or stalking that are more broadly applicable, but the state’s anti-bullying law specifically only covers what happens on school grounds.)
Right, because that’s against the law. I have no problem with making extracurricular activities be contingent on not breaking the law.
Once again, there is no disagreement with the statement that you have made here. The disagreement is whether expressing disappointment among her friends is “bad behavior”.
I’d say yes, assuming that it was an accident, and she doesn’t have a pattern of making such “accidents”. I mean, the way it worked out, the coach essentially was accidentally copied on this snapchat.
We’re in agreement, then.
It’s the future I’m looking to. No matter how narrow a ruling (in favor of the school) would be, once the door is open for schools to curtail one First Amendment right, it will be difficult to argue that they may not curtail others.
Some school administrator will decide that students in an off-campus protest were disrupting the school and suspend them. It’s easy enough to imagine a petty principal punishing a student with the wrong politics. This (prospective) ruling gives schools the authority to discipline students for speech. Why would a school not also have the authority to discipline for assembly? The school lawyers will use the same (presumably) winning arguments from this case.
Or the same thing for some religious practice. Because schools (hypothetically) have the power to discipline disruptive speech despite the First Amendment, they can claim that disruptive religious rites can also be disciplined despite the First Amendment. And use the same arguments from this case to defend their actions in court.
Once a school can get off-campus behavior of one sort (speech) past strict scrutiny, they can get other off-campus behaviors (religion, assembly, etc) past strict scrutiny using the same argument.
I can imagine lots of cases that might be claimed are disruptive. Things like participation in a same-sex wedding. Or ritual animal slaughter. Or shaming of transgender people. Or venomous snake handling. Or the worship of idols. Or ritual drug or alcohol use. Etc.
But* this court isn’t considering the facts of whether or not the behavior was disruptive, but whether the school has the authority to discipline such behavior. If the First Amendment doesn’t protect a student making disruptive speech, it follows that it doesn’t protect a student from disruptive worship.
Lower courts will have to litigate what disruptive means.
*Please correct me if I’m wrong about this.
I just wanted to say “thanks” to everyone participating; this is a very interesting discussion.
A point of clarification: Levy sent the “Fuck cheerleading” snap to 250 people. This was not a small group of besties. Also, as any teen using Snapchat knows, snaps can be forwarded.
And then…
"But one person took a screenshot and showed it to another, who happened to be the daughter of one of the cheerleading coaches. Some cheerleaders complained about Levy’s message, and the coaches decided to suspend her from the squad for a year.
I know the outdated Hollywood stereotype is that cheerleaders are Mean Girls at the top of the social heap. I believed that, too, before I started teaching high school, but students of all stripes quickly disabused me of that notion. (Today’s cheerleaders include a much broader range of students than they did when I tried out–and was not selected–in my freshman year.) I raise this only to raise the possibility that Levy’s snaps were problematic in part because they affected other students.
Again, you have an excessively narrow understanding of how constitutional analysis and precedent works in these cases. It’s simply not the case that a ruling for the school in this particular instance will open the floodgates to any and all regulation of fundamental constitutional rights off campus.
Might there be school principals and school boards who try to stretch their authority too far? Absolutely. That happens among government authorities of all kinds, on a regular basis. But the rubber hits the road when the case actually gets to court, and if these officials go too far, they’ll likely get slapped down by the federal judiciary.
The evidence that one ruling will not lead to open season is already there in the current jurisprudence on school speech. The court has ruled that schools have authority to regulate and limit student speech in a variety of areas when the students are on campus, based on a number of considerations, especially regarding whether the speech is likely to disrupt school activities. But this has not led to schools banning any and all religious or political or other protected speech on campus.
Despite the fact that students have somewhat more constraints on their first amendment rights regular people out on the street, students still do have considerable first amendment rights even when they’re actually in school. Neither Tinker v. Des Moines nor Morse v. Frederick nullified all student speech rights on campus. Similarly, a ruling for the school in this case will not nullify all student first amendment rights off campus.
If there is a loophole where bullying behavior is not against the law in general, then I would support legislation to make it so.
If any of that behavior was in a workplace, then they would be seen as creating a hostile workplace. If it is simply in public or private, then that seems like it would be stalking or harassment.
It sounds like the law, given the last 2 clauses of it, is more binding on the schools to prevent bullying, than to impose laws against bullying itself.