I’m not saying that at all. This line of cases (the word Mt. Healthy comes to mind) says that the government as private organization is balanced in that the conduct it is prohibiting must affect its mission. And they government did argue that reciting the Pledge or leading kids in prayer was part of its mission, but the Court held that those things were too attenuated and infringed on other interests too much.
While I disagree that parents should be allowed to assault their children, even in that case, it is the parents, not the state that is acting in that capacity.
If he didn’t say this to you, but to his buddies, it’s not him wanting to drop you, it is him expressing his concerns over how the case is going. Maybe you are doing a great job, and the case against him is just that strong. The point is that he is just venting frustration.
You tell me. You brought it up as though it were relevant.
I hope we can agree that just because the state sets up a public school system, and takes children in their charge, they are not then handcuffed by having a lesser power to control the behavior of those children, when, arguably, the child’s behavior threatens the authority of the state in that particular circumstance. Your rule would, by definition, make any government endeavor less efficient than a private one. Again, the government is not acting as a government by imprisoning the girl. They are acting just as a private school would act.
I don’t know how this is a good analogy. My analogy was how one learns to lose properly and, respectfully, you have twisted the analogy by switching it to the client, so it isn’t mine. If he said that to his buddies, we have an issue. And if he just said it to his buddies and a conversation with him made me feel as if he was just blowing off steam, then fine. If he blasted it to 250 of his buddies and it made the newspaper, I would have to consider whether I could keep fairly representing him. But he is not part of any ongoing team, nor is he a child. The analogy doesn’t work.
Found it. Hamilton v. Regents of the University of California , 293 U.S. 245 (1934).
~Max
Not quite. According to the Supreme Court, the school in that case could be sued because it didn’t enjoy sovereign immunity as a political entity separate from the state government. And it held that the teacher who was suing did engage in protected speech, referencing Pickering v. Board of Education (1968), in which it had ruled that the question of free-speech issues involves finding “a balance between the interests of a teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.”
I don’t see that it sheds much light on the schools power to penalize the speech of a student.
No state actor (or group of actors) enjoys sovereign immunity from 42 U.S. Code § 1983 if said actor (or group of actors) had discretion to deprive a person of their constitutional right.
§ 1983 specifically abrogates the state’s sovereign immunity, by authority of Amendment XIV section 5.
ETA: The topic case was brought by way of § 1983.
~Max
That is typically the type of balance that the Court has adopted. If I am the janitor at a school, I can speak against the upcoming bond issue as I am not a policy maker and nobody would reasonably think I speak for the school board. If I am the Superintendent, then my exact same speech would be seen as hampering the mission of the school board.
And I also agree that a blanket school policy against cursing, outside the school, about something not related to the school is not part of the powers the government has simply by organizing a school.
I’m glad you agree, but my way of balancing makes it an equal protection / privileges or immunities issue, and not a free speech issue in the slightest.
~Max
I guess I’m not following. If the school says that you will be expelled for cursing in your parents’ home, then a public education is not a privilege or immunity of national citizenship, nor is it an equal protection issue because it prohibits all cursing outside of school and is viewpoint neutral. A kid equally cannot say “fuck Trump” just like he can’t say “fuck Biden.”
That’s the reason I can’t get behind yours and Clarence Thomas’ view of the Fourteenth Amendment. It simply eliminates the substantive nature of the due process clause for an unheard of view of the equal protection clause, with many snare traps in the process.
In my view, the reason a government school cannot forbid cursing at home is because it simply lacks the power to do so under any standard. The home is not part of the school and therefore doesn’t fall under the school’s bailiwick.
Not really buying into the implied moral equivalence between “protesting the Vietnam War” and “flipping off the cheerleading coach”, but thanks for your perspective.
And to be clear, I have no desire to punish her at all for saying “fuck cheer”, let alone with a “lifetime of stigma”. I think that is well within the bounds of expected 14 year old stupidity. What I find worthy of ridicule is that the adults on both side of this case thought it was worthwhile to literally make a Federal case out of a dispute about membership on the cheer squad.
Sure, this case might establish precedent which might be useful to some student in the future who isn’t a cariacture of pettiness and entitlement. All I’m saying is that if I were an attorney interested in establishing some precedent on either side of this issue, I would have waited for a more sympathetic client to come along.
And I would totally hire the “Bong Hits for Jesus” guy, because that shit was funny. Also, he had IMO a legitimate cause for complaint, in that he was suspended from school, not just from a particular extracurricular activity.
Snapchat is also not part of the school.
But it is not like going to your friend’s house and spouting off that the coach is a dick in a moment of frustration. Snapchat is public and it goes into the school unless the school has a Faraday cage around it, or we pretend that nobody can see Snapchats.
It might, but remember that the original claim that I was responding to was that “schools will have the authority to discipline students for praying, both on and off campus.” That was the claim I rejected. In fact, even under Tinker and associated cases, students still have the right to pray on campus, as long as it’s done voluntarily and doesn’t disrupt classroom activities.
Actually, I think what is more likely is that this decision will retain the distinction between on-campus and off-campus speech, but will make an attempt to account for the effects of technology and social media, so that some speech that occurs off campus is redefined as on-campus speech for the purposes of the law.
That is, I very much doubt that the court is going to say, “You can now regulate off-campus speech.” What they are more likely to say is, “Some types of social media speech will now be defined as on-campus speech, for the purposes of applying the Tinker standard.”
I’m not sure how one might draw the line in such a case. Does it matter how many people you share your social media post with? Does it matter if the post is ephemeral, and is deleted after a short time, or if it remains up permanently? Does it matter if, as in some schools, students are forbidden from bringing their phones with them into the classroom?
Does it matter if the speech or action in question is posted by the person who engaged in that speech or action, or if someone else films them? For example, say a student attends a gun rights rally and posts a picture of himself holding a gun on his social media page. But say that the same student attends a gun rights rally holding a gun, but his picture is posted online by a third party. In the first instance, it might be possible to argue that the student’s post was intended to bring his political activity into the school community and cause disruption, but you would have a far harder time making that argument in the second case, where the gun-toting student did not post his own picture to social media.
We could even extend that question to this case. In this case, the student filmed herself saying “Fuck school” etc., and posted it to her social media account. But what if she had said the same thing to a group of her friends, but one of the friends recorded the rant without her knowledge and then posted it to social media?
I don’t follow either. I contradicted myself pretty bad with posts #238 and #248. 
The Coke example and the swearing off-campus example were definitely 1st Amendment through substantial due process strict or at least heightened scrutiny. Which I had (and continue to) rule out.
The Muslim ban and the military training would have triggered equal protection.
I could think of other legal theories but I think I’ve disgraced myself enough for one discussion.
~Max
I thought the rest of your analysis was excellent, but don’t understand this. A student speaking for or against gun control or gun ownership is the quintessential example of non-school related speech. Much like if he attended an abortion rally (for or against) or a gay or transgendered rights rally (for or against). The school is there to teach facts, not opinions, and the kid’s outside of school speech is not punishable or relevant to the in school environment.
When he/she talks about the cheer team, it is directly relevant.
Look, I agree that the student at a gun rights rally outside of school time should face no threat at all of punishment from the school. But you can’t seem to get through your head that this case deals with two separate but related issues: what is the speech about, and where and when the speech happens.
After all, the Tinker case and its progeny were pretty clear that the demarcation line, which determined where the school could and could not exercise some control over student speech, was the “schoolhouse gate.” But, as I’ve pointed out multiple times, one of the central issues in this case is whether or not the development of technology and social media effectively blurs or erases the physical line between being inside the schoolhouse gate and outside the schoolhouse gate, for legal and constitutional purposes.
Twenty years ago, no-one would ever have believed that saying “Fuck school and fuck cheer” on your own property, outside of school hours, would be punishable by the school, or that it would be reviewed by the Supreme Court. And yet here we are, because developing technology has basically rendered ineffectual some of the (relatively) clear lines drawn by the court in prior cases. Who is to say what is or is not “relevant to the in school environment,” to use your words?
As first amendment scholar Eugene Volokh points out in a very recent blog post about this case, the school speech cases like Tinker have been interpreted by the courts to effectively allow a heckler’s veto over speech on school grounds. That is, it doesn’t matter if the speech itself is objectively disruptive, or even if the speaker intended it to be disruptive. As long as someone takes enough offense at the speech to threaten disruption, the school can act to prevent the speech. This happened in the Dariano v. Morgan Hill Unified case in the 9th Circuit (2014), where the court said it was OK for a school to require some students to remove their American flag t-shirts on Cinco de Mayo, because other students took offense, and because the school feared that there might be violence or other disruptions.
The current case over the cheerleader is basically asking the court to decide whether Tinker can be applied to off-campus speech, and whether schools can therefore regulate that speech because it might “materially and substantially disrupt the work and discipline of the school.” As Volokh notes:
Volokh expresses hope that the court will, in its decision in this case, deal with the heckler’s veto question that afflicts school speech jurisprudence. He seems to think that this is at least as important as the in-school vs out-of-school distinction that is so important to the case.
@Pleonast said, earlier in the thread:
I’ve already made clear that I do not believe this would be the case. But if the school wins here, then it is indeed possible, as @Pleonast and others have suggested, that the ruling might carve out a wider geographic and temporal domain where schools might be able exercise control over student speech. And if that happens, then we might see some schools attempt to control student speech on social media in similar ways that they currently attempt to control student speech on campus.
Take the other case that I’ve referenced in this thread, Morse v. Frederick, the so-called Bong Hits 4 Jesus case. In that case, the court held (5-4) that the school could prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events. If the court finds, in this case, that the social media postings that originate outside the schoolhouse gate, and outside of school time, can be punished by the school because they disrupt the harmony or learning environment of the school, then couldn’t such a ruling theoretically also allow the school to punish a student who posted a picture of himself on social media wearing a Bong Hits 4 Jesus t-shirt, and sending that picture to his school friends?
I doubt the court will go this far. I hope they find in favor of the student, and rule that off-campus speech like her “Fuck cheer” rant is protected. If they don’t, then like Volokh, I hope that they will try to craft a relatively narrow decision that leaves plenty of room to protect the vast majority of student speech that originates off campus and ends up on social media, and that they might also do something about the heckler’s veto. As I said earlier, I think one possibility is that they might rule for the school in this particular case, but only because cheerleading is an extra-curricular activity, and because the punishment was merely suspension from the cheer squad, and not suspension from school.
I’ve probably missed several things, but I wanted to respond to two points. First, yes, you can tell a kid that when the Olympic Torch is passing by, this is not the opportunity for you to speak about marijuana legalization, no more than it is appropriate in geography class. If he sends a post on social media, he probably isn’t interrupting the parade.
If I stand up in geography class while the teacher is explaining how the Dakotas were formed and I scream “Trump 2024!” or “McDonalds sucks!” or “I believe Brexit was a poor choice” or “vanilla is a better choice of ice cream than chocolate” he can tell me to sit down and shut up. And if I post that during class on social media, the unanimous opinion seems to be that the teacher can stop me. But if I post it after school and it has the same effect on class, you would say that the teacher is powerless to stop that disruption. I think that is a silly distinction that has no real world meaning.
I agree that Tinker has a “heckler’s veto” problem, but this case doesn’t. If I was a young girl that just made the JV cheer team, I would want teammates that supported the team, not one that flipped off the coach on social media. This isn’t an outside issue like the Vietnam War that we can agree to disagree with outside of school. This is the team that you said “fuck” about. I don’t want to be your teammate. It directly affects the team.
The reason the teacher would be able to stop the student from posting on social media while in class would be that they could stop all phone use in class, or block access to recreational websites. It would not be because what they said would actually disrupt the class in any way.
What you seem to be advocating is that teachers should be able to control student’s behavior even outside of school, when the teacher is no longer acting in a parental capacity. By ignoring time and place, you are advocating for usurping the authority of the student’s actual parents.
You also seem to use “disruption” as some sort of wild card, rather than keeping it narrowly tailored to that makes it difficult or impossible to continue ordinary class and teaching. It seems like you could justify any restrictions by calling them “disruptive.”
Someone saying fuck [class], even to 250 friends, isn’t some horribly disruptive thing. It happens all the time, and doesn’t cause any problems in any of those classes. The only reason this became a big deal is that the school made it a big deal with their overreaction. If they’d just ignored this post, or maybe taken the student aside and spoke to her saying “Hey, I know you’re upset about not making varsity, but please don’t say ‘fuck cheer’ to so many students,” no disruption would have occurred.
And I object to the “both sides” approach. The school is the one who acted unreasonably. The parents suing when they couldn’t get a reasonable correction is, to me, entirely valid. The school should have done what most would have done, and settled it after realizing how dumb they were being.
I can’t treat both sides as the same here when the initial incident is just so utterly stupid. I have trouble imagining someone being kicked off the squad at my school if they had said “fuck cheer” to other students at school. where a teacher overheard them. They might get told off, but kicking someone off the squad for that? It would only be some last straw situation.
Plus, seeing as the student won, it is therefore the school that is continuing to take this up the legal ladder. What the parents probably expected was just a settlement.
I can’t say suing over this is the smartest thing, but it pales in comparison to the school’s reaction, IMO.
Again, the “outside of school” has little distinction in the social media context. You would agree that a school could punish a student for saying “Fuck you, Mr. Jones” in class. You would agree that a school could punish a student for emailing to Mr. Jones, “Fuck you, Mr. Jones” while sitting in class. Why is it different if he sends an email to Mr. Jones saying “Fuck you, Mr. Jones” the night before class from his home?
I agree with your general proposition that what the child does outside of school hours is no longer subject to school discipline, but parental discipline. But when the child purposely directs something at the school during her off time, knowing that the school officials are likely to hear about it, then the place she posts the comment makes little difference and little sense, IMHO.