What does Nebraska have to do with it? This occurred in Pennsylvania.
This is the difficult part of the case. As it currently stands, federal courts generally apply Tinker in a way that gives quite a lot of leeway to the school to determine possible disruption. Also, as I said in a previous post, the courts also interpret Tinker to allow a heckler’s veto.
So, if I’m a student and I make a social or political statement in good faith, and that statement is a true reflection of my belief, but the school learns that a small group of students dislikes my statement and is going to cause trouble as a result, the school is allowed to forbid me from making the statement in order to prevent disruption, even though I’m not actually the one causing the disruption. This is pretty much precisely what happened in the Dariano case I mentioned above, where a group of students was told to remove American flag t-shirts because a different group of students had threatened retaliation.
This case is really hard. What does and does not constitute speech within the school, and what does and does not constitute (possible) disruption, are very hard to define with any really clarity in the era of social media. If you draw a bright line, you risk some very troubling consequences, but if you try to include the shades of grey, you end up without any clear standard.
Quite a few of the justices admitted their difficulties in the oral arguments. Here’s Stephen Breyer making clear that he’s pretty unsure of exactly what to do in this case:
This is not true. This case began in the Federal Court for the Middle District of Pennsylvania. This has been, literally, a federal case from the very beginning.
We’re in agreement, I’m just seeing that a ruling in favor of the school now will necessarily lead to an expansion of schools’ authority to curtail all the First Amendment rights of their students.
For example, imagine a church youth group in a circle prayer at their church. The lead student prays that God lead people away from their wickedly sinful lifestyles, and then asks for names of those who need God’s grace. One student says a name. A second student says another name. A third student says a third name. Others in the group remain silent, only bowing their heads while the others speak. The leader then posts a recording to Facebook, asking for others to pray as well. The next day at the school is disrupted (take as stipulated) because the three names were of the three transgender students at the school. The principal suspends everyone who was in the prayer group.
Does the school have the authority to do this under current law? Will they have the authority to do this under a (presumed) favorable ruling to the school in the current case?
This is a First Amendment issue. Perhaps it could fall under a free speech ruling, but what about the students who were in the circle who said nothing? This implicates their rights to peaceable assemble and religious exercise.
If the court rules that schools can discipline disruptive speech, surely they can also discipline disruptive peaceable assembly or religious exercise? If there’s an accepted strict scrutiny argument for free speech, there’ll be acceptable strict scrutiny arguments for peaceable assembly and religious exercise.
I think this comes down to in loco parentis, which doesn’t mean your parents are insane, although they probably are and you drove them to it.
What it does mean is ‘in the place of the parents’. Schools should only act as the parents as a matter of necessity, not just because they can. Your actual parents can tell you you can’t be a cheerleader because your bedroom is not clean, they can tell you to do all sorts of things under the basis of “because I said so”, even to some extent your right to free expression. Schools seem to think they have that kind of authority all too often and hopefully this case will make it clear that they do not. There was no actual disruption here, this was not about how many people saw a picture, this was all about a cheerleading coach punishing a student because the coach was offended. There was no need to take any action at all based on any disruption, and there was no justification for the school to make an arbitrary decision to punish the student on the parental “because I said so” basis.
Should you or the Supreme Court have the power to make that decision or should the school? There has been disagreement in this thread about whether this causes a disruption. Should the judiciary act as an ex officio national school board?
I made no such rule. Not sure what you are talking about with the rest.
It would best be me, but that wouldn’t be practical. It’s not a question of who makes the decision, it’s the basis of the decision, it can’t be arbitrary, the school needs a plainly reasonable basis to decide what a disruption is, and that’s missing in this case. An actual disruption has an observable and measurable effect, there was no such thing in this case, the expression in question is claimed to be the disruption itself.
So, what you’re saying is, I have 1st amendment protections when talking about someone behind their back, but not if I let them know about it? Or, is it that I have legal rights to speak as long as I didn’t intend for the target of my ire to find out about it?
That seems to be an unusual way to frame a fundamental right. Yes, there’s the harassment angle, but I doubt anyone would consider this case harassment on the basis of one photograph.
To me, it makes more sense to ask if the school has a legitimate interest in regulating what a student says. That is the case with much speech that happens on school grounds, and the border of school grounds is a convenient bright line to use. However, I don’t think the school’s legitimate interest exists for all speech on school grounds and doesn’t exist for all speech off school grounds. Particularly so in an age where the average student carries around a portable production studio that can make their ‘speech’ available to the majority of humans in existence in less time than it took me to write this paragraph.
When I was 14, doing what this girl did would entail writing ‘Fuck Cheer’ on cardboard, taking the picture, sending the roll of film to Fotomat to get 250 copies, waiting a week, then personally handing them out to all my friends. After throwing out the 240 left over copies, I’d probably get in a lot of trouble.
She did it with the touch of a finger, which means teachers should be more forgiving, but does NOT mean they don’t have a legitimate interest in correcting inappropriate behavior that bleeds into the school day.
The content of her speech was a function of the school. The target of her speech was her friends.
If we start saying that anything that discusses functions of the school can be considered by the school, then that’s a pretty chilling effect on student’s speech.
I fully agree with this. It was not a threat, it was not a disruption, it was someone voicing their disappointment.
If she had said, “Fuck cheer! I’m going to murder the coach and the varsity team”, then that would be much more actionable. But then, it would probably be actionable about any situation in any context, and not need to involve the school at all.
I’m not actually sure… Earlier in the thread @slash2k quoted Nebraska state law at me, so I forgot where this actually was taking place, had Nebraska on my mind, as it were.
Fair enough, my contention is more about judging someone for “making a federal case out of it”, which I took the context to be about escalating it all the way to SCOTUS. Would there have been any venue she could have taken it to that was not Federal Court, then? Would the local court of common pleas have taken it?
If not then any time anyone has any legal action against a school, they are making a federal case out of it, which according to @Thing.Fish should be worthy of ridicule. There are three district courts in Pennsylvania, so it still is a local case, even if it is in federal court.
Yeah. If I say, “I hate Dave” to my friends, then that’s much less hostile than if I say, “I hate you” to Dave.
Right which is why this shouldn’t be punished. If it rose to the level of harassment, if she was sending the coach or other school officials messages, then that would be harassment.
Since that isn’t what she was doing, then it wasn’t, and it’s pretty hard to show what actual harm she caused.
With social media, all behavior can potentially bleed into the school day, so the question is is what level of behavior is inappropriate enough to punish a student for? I contend that snapchatting her disappointment with not making the team does not nearly raise to that level, even if it uses foul language.
I’m saying that the young lady didn’t bring the incident onto school grounds, so she shouldn’t be held responsible for any “disruption” that occurs as a result of it being brought onto school grounds.
Students should be able to rant about a teacher to their friends, off school property.
A student should prolly not be able to rant to their teacher’s face on school property.
The United States has, at both the federal and state level, generally adopted the common-law principle of sovereign immunity. That is, you don’t get to sue the government at all, unless the government explicitly consents to be sued.
Almost exactly 150 years ago (April 20, 1871), the United States Congress passed and President Grant signed a federal law allowing people to sue state employees who violated their constitutional rights. It was called “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes,” otherwise known as the Ku Klux Klan Act. That law lives on in the US Code as 42 U.S.C. § 1983, often simply known as Section 1983. That’s the law that this student used to sue the school district, and if you want to sue under Section 1983, it has to be in federal court. That’s also why lawsuits against police officers (for violation of rights) nearly always happen in federal court, because Section 1983 gives citizens a federal cause of action against a state employee who violates their constitutional rights.
Whether this student could have sued in state court depends on whether, and to what extent, the Commonwealth of Pennsylvania has set rules allowing citizens to sue state actors for actions taken in their official capacities. I don’t know much about Pennsylvania state law or the state constitution, but a quick Google search suggests that, with a few fairly specific exceptions, sovereign immunity is alive and well in PA. It is possible, therefore, that there was no way for the student to sue in state court.
But when you say it in a forum that is all but certain to find its way onto school grounds, then IMHO you should be treated as if you said it on school grounds.
I agree. If you go to your buddy’s house and bitch about the coach and your buddy secretly records you and takes the recording to the coach, then you can reasonably complain that you never intended it to enter the school environment. When you put it on social media, you are making a digital recording on the internet which is a forever thing. My words to my buddy should disappear into the ether.
She purposely shared it with 250 people, not one. If I was able to have 250 people come over to my house, well, they wouldn’t fit there, nor even in a meeting room at the Holiday Inn. I would need to rent a rather large gathering place. That should dispel the common line in this thread that it was somehow a private communication or just spouting off to a buddy.
The big point of contention in this thread seems to be whether her comments disrupted the school environment. We have (I think) universal agreement that disruption in school may be punished, but nobody has made a convincing argument why the in school/out of school distinction makes any sense on social media.
If the school bans social media use in the classroom, there is no reasonable nexus between the social media post and the classroom, and the in school/out of school distinction is preserved.
~Max
Which is something that should be brought up – the whole notion that “oh, I only shared it to my Snapchat thread” is basing it on the misleading publicity of the social platforms about the messages being closed and ephemeral. If it can be played on a screen, it can and will be captured. “Three can keep a secret if one is dead”, but 250 being in on the comment guarantees a whole lot of “third parties” are going to hear of it.
So in part the aspect of losing out on participating in the cheer team – which is not a fundamental right, and is not a part of her compulsory schooling – is itself a learning opportunity: just because you “did not mean” for it to get back to the authority figures, it does not insulate you from consequences if it does. The argument then becomes what if any the consequences may be beyond some extremely awkward parent-teacher conferences.
So do students, teachers, and administrators get a Men In Black-style mind eraser when they walk into school to forget what they viewed on social media an hour ago or last night?
But you hope a coach will say, “Yeah, you were just spouting off to your buddy, who you now know isn’t your buddy, but are we cool going forward?” versus a suspension from the team because you said it to 250 people.
And we hope the coach is reasonable, but I don’t like the idea that if he is not, the the federal judiciary acts as appellate school coaches. Oh, but this has to do with Constitutional rights? If I miss practice all of the time, can I argue that I have the right not to assemble at practice? This line of cases seems to unnecessarily federalize and constitutionalize issues but only if you fit into a tight framework, a loophole, where if you say it four feet off of school property you are fine, but almost everything inside school property can get you cut from the team.
There is no such device, at least I don’t remember seeing one.
The state may not regulate simply based on such a weak nexus, a mere possibility that it could bleed into school and interfere with education. The state may not censor newspaper coverage of its schools based on the possibility that unfavorable coverage might disrupt education. The nexus is too weak.
Now, if your student actually bullies another student outside of school - including verbal bullying, that is grounds for disciplinary action - just like physical bullying. The student is entitled to some sort of hearing to defend herself against accusations, but once the connection is made between the act and actual or imminent disruption in class, the school has satisfied its constitutional obligation.
~Max
They are expected to put it aside and concentrate on why they’re there. I would think a student’s disappointment on not making the varsity squad could be ignored by most people when they get to school.