When a ninth-grade student in Pennsylvania expressed her frustration in crude language on social media after failing to make the varsity cheerleading squad, she was suspended from the junior varsity squad (“A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown,” The New York Times, Dec. 28). The student sued the district, winning in the U.S. Court of Appeals for the Third Circuit, which held that public schools can’t punish students for off-campus speech.
School administrators want the U.S. Supreme Court to hear the case in order to get a definitive ruling on the issue. I hope the high court rules against the school district. What the student said was not disruptive and contained no threat. So what were school officials thinking when they decided to punish her for one year? If her speech contained a threat of violence of any sort, that would be an entirely different matter.
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Agree that the SCt should take the case — school administrators (and students) should know what the rules are and the NY Times article says that there is disagreement between the circuit courts re what the rules are.
The hard part for the SCt will be drawing a bright line between X’s conduct as a student and X’s conduct as a citizen. As a lawyer quoted in the NY Times article notes, in the internet age there is no longer a geographic bright line between “at school” and “not at school”.
Seems intuitive that school administrators should have the authority to regulate student behavior when the student is functioning as a student — like during a classroom discussion and probably when the student is eating lunch in the cafeteria while physically interacting with other students in the cafeteria. But, how about if the student is sitting in the cafeteria during lunch period and typing something on his FB page — that is, on school property but on the student’s own time + interacting with other students via the internet but not physically interacting with other students? School administrators should be able to know what the rules are re their authority in these cases.
There are perhaps confounding issues raised by this particular case — i.e., cheerleading is extracurricular rather than part of the regular school program so perhaps the school’s interest in regulating student speech that arguably interferes with cheerleading is weaker than the school’s interest in regulating student speech that arguably interferes with classroom instruction + the discipline here is suspending the student from the extracurricular activity, not suspending the student from school itself. Suppose the girl had encouraged all the JV and varsity cheerleaders to strike/boycott the next football game? Seems reasonable to me — albeit perhaps at a gut level — that the cheerleader coach should be allowed to suspend a cheerleader who encouraged the other cheerleaders to boycott the next football game. Might argue that an encouragement to boycott goes beyond speech and is an encouragement to take an impermissible action.
The more I think about it, the less I like this case as a SCt test case for student free speech rights.
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Labor Lawyer: It’s going to be hard for the Supreme Court to draw a line about what school officials can regulate regarding student speech that occurs off campus. Unless students make threats to life or property, I think they should back off.
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How about the football player who sends an email to all the team members encouraging them to boycott the next game in order to protest the coach’s naming Joe instead of Tom as starting QB? How about the History student who sends an email to all the students in the History class encouraging them to refuse to answer any questions in class to protest the Biden sticker on the History teacher’s car? Suppose the emails are sent from the student’s home computer (not on school grounds). Seems that school officials should have authority to discipline students for off-campus activity that adversely impacts school functions.
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Labor Lawyer: The problem is where to draw the line about disrupting school activities. During the Vietnam War, I remember students voicing their opposition in the school newspaper. The principal censored the article, claiming it was disruptive to learning. So students published an off-campus newspaper and handed it out on the sidewalk off school grounds.
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Perhaps the cheerleader case is a good vehicle for the SCt to lay out rules governing all sorts of circumstances. My narrower point is that it’s unlikely that there can be a single one-sentence “bright line” test (like “off school property is protected speech absent threat of physical violence”) but rather we will need a multi-sentence or even multi-paragraph test with multiple caveats.
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Labor Lawyer: I think you’re right about what the Supreme Court can do in this regard. I wouldn’t want to be a school principal these days deciding when to step in.
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