Protect students’ private speech

By THOMAS A. BERRY
Posted 5/4/21

Imagine that a public high school student posts an editorial cartoon criticizing efforts to expand the Supreme Court on his Facebook page. The next day, when the student arrives at school, …

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Protect students’ private speech

Posted

Imagine that a public high school student posts an editorial cartoon criticizing efforts to expand the Supreme Court on his Facebook page. The next day, when the student arrives at school, administrators pull him aside. They tell the student that because of his post, his classmates are debating court-packing when they should be studying algebra. The administrators give the student an ultimatum: Delete the Facebook post or face school discipline.

This might seem like a blatant invasion of the student’s First Amendment right to speak. Yet, it could be allowed if the Supreme Court rules for a Pennsylvania school district in a case called Mahanoy Area School District v. B.L.

The case arose from a typical moment of teenage drama: A rising sophomore didn’t make the varsity cheer squad. Out with her friend on a weekend and stressing about this snub, she pulled out her phone and opened Snapchat. That’s when the student, B.L., flipped the bird to the camera, took a selfie, and sent the photo to her Snapchat friends with a caption that included [an expletive].

B.L.’s “snap” came to the attention of school officials, and the student was punished with a year-long ban from the junior varsity squad.

But B.L. challenged that school sanction in federal court as a violation of her First Amendment rights. The 3rd U.S. Circuit Court of Appeals agreed with the student and vacated the suspension. Now, the school district has appealed to the Supreme Court, asking the court to extend a 50-year-old precedent in a way that would fundamentally alter the amount of control public schools have over student lives.

In Tinker v. Des Moines, the Supreme Court ruled in 1969 that public schools could regulate student speech in school when necessary to avoid “substantially disrupt[ing] the work and discipline of the school.” In practice, this has given public schools significant power to curtail student expression within the school environment.

But the Supreme Court has never held that Tinker’s rule also applies to student speech outside the school environment. And for a good reason. As explained in a brief filed by the Pacific Legal Foundation, joined by the Cato Institute and satirist P.J. O’Rourke, the Tinker rule has always been problematic because it effectively establishes a “heckler’s veto” within the school environment, allowing some students to silence the speech of others by insisting that it distracts and offends them.

Extending this regime outside the school environment would drastically chill the expression of students at a time of life when they should be finding their voice. And it would instill fear and hostility in school communities, with students aware that anything they say might be reported back to school authorities.

Tellingly, even the school district was unwilling to offer an enthusiastic defense of the Tinker standard. The school instead painted a rosy and limited view of public schools’ Tinker authority, claiming that it does not reach political speech, that it does not allow a heckler’s veto, and that it only applies when students use “terrorizing” language.

But that is not how Tinker has been applied.

The Supreme Court should narrow the Tinker rule so that only objectively disruptive speech in the school environment can be punished.

Being trained to live their lives without ever giving offense would be a terrible lesson for students to learn.

Thomas A Berry is a scholar at the Cato Institute (cato.org) in Washington. A longer version of this article was published by the Washington Examiner.

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