One of the first things minors in the public school system generally learn about regarding the First Amendment is that they are an exception to the rule. Within school, free speech is limited. Schools do possess the authority to restrict the speech of students in their care, and students are not usually in a position to do anything about it.
Those restrictions were largely reaffirmed this week, with the Supreme Court granting an unreasonable discretion to schools in deciding where they begin and end.
The case at hand follows then 14-year-old Brandi Levy, who, after being denied a spot on her varsity cheer team, was given a 1-year suspension from the sport entirely after a Snapchat story of hers reading, “fuck school, fuck softball, fuck cheer, fuck everything” was shown to one of the coaches. Levy took her case to the courts, who ultimately ruled that the punishment was not justified.
The victory, however, came with a catch. Levy’s suspension was deemed unconstitutional in part because her online speech failed to create the kind of classroom disruption that warranted school intervention. According to the Court, schools do possess the right to police online or off-campus speech, but only if they can show that it is being done in an effort to curb that disruption.
Put by Justice Stephen Breyer, schools’ “license to regulate student speech [does] not always disappear when that speech takes place off-campus.”
The ruling is an extension of one that occurred in 1969’s Tinker v. Des Moines, where a group of junior high school students were suspended for wearing black armbands to school to protest the Vietnam War. While the court ruled in favor of the students, it also held that if schools showed that they reasonably anticipate a substantial disruption, then they hold the authority to punish the speech that causes it.
For students, the ruling poses a fairly practical difficulty. Rarely will they be able to predict whether or not their speech will create disruption, meaning that they will rarely know whether or not an article of speech is punishable until it has already been spoken.
As a principle, it also means that the First Amendment will include or exclude student expression based on whether or not that expression yields an effect that the school deems undesirable, rather than whether or not expression itself is worth protecting.
Perhaps a greater issue with the now reinforced rule is that it stands in opposition to social organization, which is often designed with “substantial disruption” in mind. Necessary change often requires necessary disruption, something that this ruling stands to curtail significantly.
Justice Elena Kagan brought up a number of complicating hypothetical scenarios that illustrate the dilemma:
“Student emails that they should refuse to do any work for English class until the teacher changes the syllabus to include more authors of color?”
“Student tweets that there’s pervasive homophobia at his school and that prospective gay students should stay away?”
The cases highlighted the court’s dilemma in balancing a school’s interest in maintaining order and effectiveness, and a student’s right to express themselves critically.
Many of these issues come at the hands of the legal doctrine in locos parenti (meaning ‘in place of parent’), whereby a school borrows authority from parents to supervise and discipline students while they are in their care. This ruling was not just about whether Levy’s speech was a punishable offense, but also about whose responsibility it was to dish out that punishment, whether it be the school or her parents.
As put by critics, in locos parenti “threatens to resurrect the long-discredited canard that minors do not ‘own’ their constitutional rights but are simply ‘borrowing’ them from their parents.”
If the ruling has any solace, it is that adult students do own those rights. While colleges maintain the authority to limit and discipline student expression, they do not act in place of parents when doing so.
Public schools, and colleges in particular, may need to adjust how they respond to problematic off-campus expressions going forward based on this decision, and may need to reassess where their jurisdiction meets that of a student’s, and parent’s, broader First Amendment rights.
But what specific bearing might the ruling have on the future of students’ free speech and expression at the University of Maryland, Baltimore County, a federally funded public university? With the successful student protests spawning Retriever Courage and the updating of campus cards with emergency services, the hope is that UMBC students can continue to cause the type of good trouble John Lewis so often called for when pushing for social change.
