From Eric
Hi Friends. The above link is a case I've been following for a while. It is less than a 10-minute read. As many of you know, I'm a 'public school person' (elementary principal) and I keep my eye on educational cases. This one is somewhat dramatic in shifting the scheme of public education and First Amendment rights. Specifically: student speech and how educators can respond.
When I was a very young principal, my head custodian called me one Sunday and said I needed to come to the building. On our large outside back wall, in spray-painted 2 feet block letters... complete with correct grammar and punctuation, was the message: "F... You Mr. Holmes."
To this day I have no knowledge of who I offended, made mad, or whatever. But that was the moment, I knew I had arrived fully to being a principal in all its glory. Someone had certainly chosen to exercise their speech rights. There is the vandalism, but that's another story.
Some questions to play around with:
What should be the parameters, if any, for student speech and how do schools respond?
With electronic and social media where could this go next? Considering this latest precedent by the Supreme Court, how would you advise students if asked about what they can, or can't say in social media about school? Any personal experiences in this realm?
Great post. And a challenging one too! Social media today gives students a platform in and out of schools to express protected First Amendment rights. Who do you blame, if blame is the correct word here, for these things happening? The student? The parents? The school? Social media? We are all aware of similar cases and I tend to agree with Izzy Johnston's statement about Levy being within her rights to express frustration and anger. However, I may be old school and firmly believe respect for all educators and administrators is paramount. Today's social media outlets provide impressionable youth with way too many temptations which have had devastating impact. A few years back, eliminating cell phones and any social media platforms, how would this case have made its way to the Supreme Court? I believe Levy learned an important lesson when the school district suspended her. However, the suspension seemed to have escalated the issue towards the steps of the Supreme Court.
ReplyDeleteSchool officials have considerable authority to regulate what students do and say on school grounds during school. But how and where to draw the line when the student conduct takes place off school grounds is becoming increasingly difficult, particularly when many classes are now being held virtually due to the pandemic. As my law school professor colleague RonNell Anderson Jones noted in the KSL article, the Supreme Court's opinion noted that there is no hard and fast on-campus/off-campus line. Student speech that is threatening or considered cyber bullying of a classmate may still be subject to some school regulation even if occurring off school property. Another example of what we have emphasized in this course repeatedly...facts matter in how legal principles are applied; change the facts and maybe you have a different outcome.
ReplyDeleteThis reminds me of a middle school experience when the Save a Breast Foundation sold “I (heart) Boobies!” bracelets to raise money for the foundation and spread breast cancer awareness. In schools across the country, including my own, the bracelets were then banned on campus or confiscated because of its debated lewd language. Some students were even suspended for wearing the bracelets. This led to a federal court case in Pennsylvania and the judge found that the ban violated student’s 1st Amendment right. This instance seems miniscule compared to the social media giant school districts would later have to face.
ReplyDeleteIn high school, several students were suspended or expelled for things posted on social media, most being threats toward the school or faculty. My school district drew a hard line, for the safety of its students and faculty, even if the students claimed to be venting as all of them did. While online posts off campus are still being navigated, my advice to students would be as Prof. McPhail said in class, “Treat everything you post online as if it will be on the front page of the New York Times”. If you’re not prepared for the possible repercussions, best not to post it.
The TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT court case (89 S.Ct. 733, 1969) had set the parameters of student speech (particularly students in high school and 18 and younger) in school. In the opinion delivered by Mr. Justice Fortas, the reasoning behind the reversing and remanding of the Des Moines School District's ban cites previous Freedom of Speech cases, including the reversing of "forbidding the teaching of a foreign language to young students" (( Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923), and prohibiting public schools to compel students to salute the flag (West Virginia State Board of Education v. Barnette). Although these cases constricted the authority that both state governments and school districts had within their stewardships, Tinker highlights the conflict between students exercising their First Amendment rights and the rules of the school authorities.
ReplyDeleteThe MAHANOY AREA SCHOOL DISTRICT v LEVY (141 s.Ct. 2038, 2021) does not necessarily limit the authority of the school authority rather, as the KSL article states, "they are really kind of limiting their ruling saying you can't come after a student for speech unless it's substantially disruptive or it threatens or harms an individual or their rights, which to me really kind of made this nice chunk, carve-out for bullying."
I am happy the US Supreme Court ruled in favor of Levy, minors in school should be nourished to contemplate and analyze their positions. Rather, many authorities (school and state) penalize and punish. There is a distinction, as stated by Justice Breyers, in the Levy case that qualifies the circumstance of the student to be protected, as the student's action did not "materially [disrupt] classwork or [involve] substantial disorder or invasion of the rights of others."
In the KSL article, the author shared the opinion of one interviewee citing the court brief pertaining to "a school [rarely standing] in loco parentis", the interviewee said, "the ruling says students' off-campus speech will generally be the responsibility of their parents, and it won't be the role of the court to intervene and punish that speech." When applying a racial lens to students and the interactions of school authorities, many white institutions with white employees do behave as parents over children of color, either with sinister or savior-like intentions.
ERIC, you asked, "Considering this latest precedent by the Supreme Court, how would you advise students if asked about what they can, or can't say in social media about school?"
My response is that although Levy did post expletives regarding activities done in school, the post did not explicitly mention the school nor school officials. This is an important detail, if names were mentioned by the student, I believe the justification to suspend Levy from the JV team would be valid because of bullying and harassment. If I were to advise students, I would focus on bullying, harassment, and disruption and what they are. If actions by students fall outside of the scope, then I would think their actions would be protected by the First Amendment. The court cases have to do less with the geographical location, although still pertinent, and more with the manner of how the speech is rolled-out.
Awesome post, Eric!
ReplyDeleteFor me, it is more relatable because I was in highschool less than 10 years ago... but I also drew a line of assimilation to B.L. student who voluntary signed a contractual agreement stating she would uphold certain standards in order to be a participating member of her elite cheerleading squad to that of my voluntarily signed contractual agreement to the United States Military.
While I understand the blaring differences between these two situations, both were by choices made by the individual to partake in an exclusive league.
In PARKER v. LEVY, 417 US 733, in 1974, it was ruled that servicemembers freedom of speech is limited to protect the national interest. The military restricts the rights of its servicemembers, the same way a school cheerleading organization could, albeit not nearly as constraining.
However, do I think B.L. committed an offense that would directly tie back into the interest of the school, slandered, or libel? No, she was not on school grounds, did not state false claims, the school was not damaged by the conduct of B.L., and no individuals names were uses in her Snap.
I agree with the Supreme Court's ruling, that the school district violated B.L.'s First Amendments Rights.
Eric, very interesting case. It is very interesting to see how the court applied the free speech clause to a minor. Social media and sharing of information is also quite interesting considering how much schooling and communication has changed with the technological advancements.
ReplyDeleteWhile I agree with the Supreme Court’s decision, it would have been nice to have more definitive parameters. Right now, I see the parameters as a grey area with some very clear major violations. Bullying especially via social media should not be allowed and should have consequences through school and at home (I hope). Threats against the school, administrators, or other students is a second example of speech that should not be protected and have consequences. I also agree with the fact that this particular rant was not for public consumption. Complaining to a group of friends is different than posting in a wide venue. Vague complaints against a school or the administration without naming anyone specifically is a much harder line to draw. I do not think that type of speech should have consequences at school. I don’t see it any different than any student complaining about a class. If I put on my social media that I was struggling with an unnamed course and stated some things about the teaching style without any specifics, should I be disciplined for it? It is a personal opinion without any threatening language. I feel it is within the realm of free speech. I guess that would set my parameters. A school should only have loco parentis over a student for speech off school property or via social media if it threatening harm and/or is bullying towards a specific person. A school should be allowed to respond in those instances as it affects the physical or mental safety of those under their care.
When advising students, I would always tell them to be very cautious with what is posted. What is shared or posted on the internet never goes away. Once it is live, it will then have a life of its own. It will reach places you never expected and will have affects you never imagined. The analogy I would use is it is like squeezing all the toothpaste out of a tube. Once it is out, it is almost impossible to put it back. Words and posts are the same thing. I have talked with youth in my area about how words matter and to be cautious and cognizant of what should be shared. Telling my children is the same thing. I’m thankful they have taken that advice to heart when posting.
I agree with the Supreme Court's decision here. Nothing that Levy posted was threatening or bullying in any way. We've all vented to friends about things that didn't go our way--jobs, promotions, exams...I bet each of us could quickly bring up a handful of similar rants if asked to do so. But I do agree that schools and institutions have a line to draw--bullying, harassment, and threats seems like a completely valid line to cross. As does protecting things like health information, trade/government secrets, and the like. As a "grandma millennial," social media wasn't really a thing until I was well into my 20s so it's never been a huge part of my life--but I can see how growing up at a time where it permeates every aspect of life makes it hard to know where to draw a line sometimes. I like Trina's analogy--once it's out, it's almost impossible to put back in, so best to err on the side of under-sharing rather than over sharing.
ReplyDeleteThat is a great article! My high school was nearly 90% of Mormon, so we don't use many taboos language. I am not sure if anything happened to my high school.
ReplyDeleteThis is very tricky because of our first amendment - Free Speech. I talked with my friend about Generation Z (1998 - 2012) & Generation A (2012- present) social norms school is completely different from the oldest generation. For those born and raised in top-notch technology, their language has become less taboo and may cause more trouble. For example, students will post it on their social media to express their feelings toward the education system and how people treat them based on the first amendment. They have the right to speak their feelings.
I am 100% certain that teachers, faculty, staff, admirations, and people working with children must be very careful with language and word choices or students will find a way to harm people's reputation.
Again, it is very tricky. If we can change the definition of the first amendment with emphasis on vulgar or any negative comment, then things can be different. As a personal opinion, the first amendment needs to add a definition: intolerance to using vulgar language against or harm people or any reputation.
Eric, thoughtful questions! While I believe the Supreme Court interpreted as they should have, I wonder if this is another case of how a strict interpretation of the law promotes what I would call an incorrect opinion when it comes to the responsibility of civility that should accompany the right to free speech. What did B.L. learn from this, particularly given the support of her parents in the legal action taken? I can say anything I ***** ***** want to say.
ReplyDeleteIn addition to the blurred line of school boundaries associated with social media, which many of you have mentioned, I think the lines of what civil speech is have also been blurred.
Anything we post is for the public to view. Have you ever considered that what you have posted could be used to decide if you are a good "fit" for the employer to whom you have made application for work? It is public information about you -- you made it public by posting it.
This has been one of those articles that I keep seeing when I browse KSL but I had not read it yet – happy I finally had the chance, I had no idea the extent it covered. As others have stated, this is a very interesting case and it does lead us all to question, where is the line, especially with remote learning being such a big factor in our life the last 16 months. It seems we can all agree bullying and harassment should not fall into the on-campus/off-campus rule and should be punished if engaged in. It states in Mahoney Area School District v. B.L. that the District Court found that B.L post did not cause substantial disruption at the school, but would the outcome have been different if all the sophomores decided to engage in a strike for the day because they felt B.L not making jv was unfair (I know, a stretch but throwing it out there)
ReplyDeleteWhile we want to encourage our youth to engage in responsible online activity, they should also feel safe if they want to vent about something – we see people do it on their Facebook walls every day, so how do we teach our children not to do one thing when they see the adults in their life doing what they see others do. It is a gentle reminder as Susan has said that we are often told, once you post it online, chances are it is around to stay for good, regardless of its lifespan of 24 hours.
Great article! I had followed the case for a bit, but it fell off my radar. It's nice to have the conclusion.
ReplyDeleteEric, as a "public school person" would you agree that this ruling doesn't only protect the free speech of students, but it also protects the time of the administrators.
If public schools had to monitor all social media of all their students because ONE admin in a high-enough position decided that was mandatory, when would teachers have time to prep for classes etc.?
This is a great outcome for free speech rights, and I feel has a side benefit in protecting the time of our already overburdened/underpaid teachers.
I, as a parent, have had many opportunities to think about this issue as both my boys were very opinionated and very vocal in their junior high and high school years. I lost count as to how many times I got calls from their school administrators and had to have meetings with them. Sadly, I always came away from those meetings feeling like my kids and kids like them were not allowed to express their opinions on politics, race, policing, or religion without severe backlash if they didn’t fit into the bubble of acceptable answers. I always told them that it changes in college because conversations are more open and freer and that my professors were the exact opposite of the teachers they were dealing with. My professors encouraged dissenting opinions and taught us to question everything.
ReplyDeleteProfessor Dryer reiterates a great point that Professor Jones mentioned about the on-campus/off-line standard being unclear. I agree with student speech that is threatening or bullying being policed by school officials, but I fear that with other free speech issues, they will overstep and police their version of what they consider to be words that inflict injury because of the unclear boundaries surrounding classes online.
I love that you chose this case. I remembered listening to NPR when the news of this first broke.
ReplyDeleteFirst, I can empathize with your experience of the vandalism directed towards you. I am sorry that is something you experienced. I also appreciate your sentiments. The way I understood what you said was that while it did not feel good, in your position you have very hard choices to make, and you recognize you cannot always please everyone.
As for the case, I was frustrated that this girl was being punished for expressing herself. Too often girls and women are told to speak kind and pretty words, hold in how they feel, and let things go. Oftentimes this leads to shame, and believing they did something wrong. I was proud of the young woman not allowing the decision of not making cheer dictate her self-worth. Instead of thinking she was not good enough, she chose to believe she was, and that it was the squad and school’s loss, not hers. At least that is what I heard.
It comes down to perspective. We hear what we hear based on our epistemology. Someone else could have heard something completely different, but the facts are she did not threaten or endanger anyone, there was no liable, there was no safety concern involved. Freedom of speech allows people to speak their truth without feeling concerned their rights will be taken away. If there is information that could lead to others getting harmed (school shooting), if there is cause to believe someone could take their life, if there is bullying, or hate speech, these are the things that a school has a right to intervene. And even on those matters it should not be about punishment, but about safety and concern. Regulating a student's right to express frustration for teachers, administration, or school in general is beyond the courts scope. Everyone expresses things in frustration, even as adults. Trying to sensor a teenager whose brain is not fully developed would be a slippery slope. As I think about my own son, and the students I work with, I don’t believe I would say anything different in advising a student, while also encouraging respect.