• David Wolfe Bender

There Could Be Another Landmark First Amendment Case on the Supreme Court's Horizon

Updated: Jan 4


Public schools in the United States, generally speaking, have the right to police the speech of students when that speech occurs on school property. For example, in the landmark 1988 Hazelwood v. Kuhlmeier case, the Supreme Court gave a school administrator the right to censor a student newspaper, so long as it is related to "legitimate pedagogical concerns." Circuit court judges have also affirmed this principle: in 1979, Irving R. Kaufman, Chief Judge for the 2nd Circuit Court of Appeals, wrote that educators and administrators must be "accorded substantial discretion" in their actions so long as their "arm of authority does not reach beyond the schoolhouse gate."


But what happens when it does reach beyond the schoolhouse gate? Well, you should ask the 3rd Circuit Court of Appeals. They have an answer for you.


The Situation

Consider this: a sophomore in high school tried out for her school's cheerleading team. For the second year in a row, she was placed on the junior varsity squad. Upset about the situation, she did what many teenagers do when they are upset: open Snapchat. She posted a message to her friends: "f*** school f*** softball f*** cheer f*** everything." (There were no asterisks in her message, but this is a family friendly news page).


For what the student had in self-aggrandized cheer ability, she lacked in good friends. In what is likely a startling move to teenagers, one of the student's "friends," who had access to the message she posted, took a screenshot of the material. That screenshot was sent to the cheerleading coach. As the coaches believed it violated team and school rules, they removed the student from the cheer team and said the student could try out again the following year; their decision was affirmed by the "athletic director, school principal, district superintendent, and school board" after the student's parents appealed to school district officials, according to court documents.


Ironically, the coaches believed the student's message not only violated team and school rules, but that it also hurt the team atmosphere. Want to know what else probably hurts the team atmosphere? A federal lawsuit. Whether or not it did hurt team coherence or spirit, a federal lawsuit is what they got.


The State of Affairs

When the lawsuit was first argued at the district level, the student prevailed. The judge said that the student's "words were constitutionally protected by the First Amendment" and deciding otherwise "would 'allow school children to serve as Thought Police — reporting every profanity uttered — for the District.'"


The school was disappointed in the decision (though not disappointed enough to post their concerns on Snapchat). They appealed the decision to the 3rd Circuit Court of Appeals.


A three-judge panel at the 3rd Circuit heard the case in November 2019. The fundamental question was whether or not schools have the right to police student speech that was created off campus. The three-judge panel determined unanimously that the student was punished unfairly and affirmed the district court's decision. The opinion was announced in June 2020.


The school district was, again, disappointed in the decision (they still didn't voice their displeasure on Snapchat, however). They officially filed a petition for a writ of certiorari to the Supreme Court of the United States in August. They now await an answer on whether or not that petition will be accepted. It is likely they'll get their answer within the week.


Why This Case Might Look Attractive to the Supreme Court

There are a few reasons why this case looks destined for the nation's highest court. In the 3rd Circuit's decision, they took a new step and answered a question their court had long left untouched: whether or not the precedent of Tinker v. Des Moines Independent Community School District applies to off-campus speech.


Why is the Tinker v. Des Moines precedent important? The landmark case — decided in 1969 — determined that students do not lose their First Amendment rights when they enter school property. However, the court created the "Tinker test" (also sometimes referred to as the substantial disruption test). This principle asserts that school administrators may discipline students if their speech can cause or has caused substantial disruption to the operation of the school. The precedent from Tinker is still cited in First Amendment cases today, more than 50 years after the case was decided.


Sidenote: The Tinker case pitted school administrators against a group of students who were wearing armbands to protest the Vietnam War. The Supreme Court sided with the students and said they have the right to wear the armbands in school. Essentially, the majority opinion created the Tinker test, applied it to the case at hand, and awarded the students a win.


If the Tinker precedent does apply to off-campus speech, administrators would be allowed to discipline students for off-campus speech should it qualify under the substantial disruption test. If it does not apply, administrators could potentially be shut out from disciplining students for any off-campus speech.


Sidenote: The latter of those two options is bad news for those who want to see discipline against cyberbullying. The 3rd Circuit, of course, did not come across this issue in this case, but generally, cyberbullying is far more likely to be considered constitutionally protected speech if the Tinker precedent does not apply. It is difficult to argue cyberbullying substantially disrupts the operation of the school (though, there is other jurisprudence regarding cases of this variety).


The 3rd Circuit determined that the Tinker precedent does not apply to off-campus speech. Why did they make that determination after so many years of avoiding the issue? The rise of social media makes the issue all the more pressing.


"The time has come for us to answer the question," Judge Cheryl Ann Krause wrote in the 3rd Circuit's opinion. "[W]e see...that social media has continued its expansion into every corner of modern life."


Sidenote: The 3rd Circuit specifically said that off-campus speech that harasses, bullies, or threatens violence, is a conversation that must be had, though they recommend the argument be reserved for another day.


This determination by the 3rd Circuit is a precedential one, and it has remarkable implications for the education community and future cases of this type. Those characteristics could make it appealing to the Supreme Court, especially to a Court that has repeatedly avoided this question in the past.


This decision creates a reasonable inconsistency among other circuit court decisions. The Supreme Court may find it in their interest to clarify this inconsistency.


The nine justices on the Supreme Court will discuss whether or not to take this case on January 8th, 2021. As a reminder: very few petitions for appeal are accepted to the Supreme Court, as the Court hears very few cases each year. Despite that, this could be one of them. If the petition is denied, keep your eye on the Snapchat accounts of the school district's officials: they might have something to say about it.

© 2020 by David Wolfe Bender.

Photos courtesy of the Freedom Forum Institute.