Issuing this order about free speech will not make it less likely that progressives will continue to misuse executive authority for their own purposes.
In a near-unanimous decision, the Supreme Court has enforced the First Amendment’s Free Speech Clause against a claim by a public high school that it could discipline a student for her words uttered off-campus.
A student at a Pennsylvania public high school tried out but was not selected for the varsity cheerleading team but was put on the junior varsity team. While off-campus, she sent a Snapchat post (which would normally delete itself automatically after 24 hours) to a group of friends, which was then relayed to other students and eventually to parents. With middle finger raised, the post said, “F*** school f*** softball f*** cheer f*** everything.” When the school found out about the post, the student was suspended from the junior varsity team as well. (She also failed to make the roster of a private, non-school softball team.)
Relying on Tinker v. Des Moines, a landmark of the individual-freedom movement of the 1960s, the student sued for her First Amendment rights of free speech. With its ever-since-famous statement that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court upheld a student’s right to wear an armband at school protesting the Vietnam War.
The present case is Mahanoy Area School District v. B.L. After winning at district and appeals courts, both of which essentially said that students have free-speech rights on- and off-campus, the student has now won 8-1 in the Supreme Court. The school district argued that its supervisory authority over student speech extended off-campus. Although the case does not involve any federal education programs, the Biden Justice Department asked for and received permission to participate in oral arguments in April and argued against the student.
In writing the opinion for the 8-1 Court (Justice Thomas being the lone dissenter), Justice Breyer set out and prioritized three broad principles. First, he recognized the legal and commonplace authority that schools have over students in loco parentis but held that schools will “rarely” have such authority over “off campus speech.” In his concurring opinion for himself and Justice Gorsuch, Justice Alito amplified this point by citing Pierce v. Society of Sisters and Wisconsin v. Yoder, the two leading historical cases in which the Court upheld parental rights in education. Alito emphasized that “enrollment cannot be treated as a complete transfer of parental authority over a student’s speech.”
Second, Justice Breyer made the remarkable and accurate observation that “regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during a 24-hour day.” Third and just as important, Breyer stated that since “public schools are the nurseries of democracy,” public schools themselves have “an interest in protecting a student’s unpopular expression.” That is, he actually said that the public school district in this case was arguing against one of its own purposes.
In establishing the free-speech rights of students on-campus, Tinker did not state that “anything goes” in student speech. The Tinker Court held that schools can and do regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” But this limitation placed on the Tinker ruling became the sum and substance of the school district’s and Biden administration’s reference to Tinker. In argumentation, they essentially repudiated Tinker’s on-campus factual setting within the “schoolhouse gate.” On possible in-school material disruptions and disorders caused by out-of-school behavior, Breyer mentioned and endorsed schools’ interventions in certain off-campus activities: “severe” bullying, harassment, threats against teachers or other students, and cases in which students were not “following rules,” by which he meant students finding ways to cheat in school lessons. But such interventions don’t amount to much. After all, three of those behaviors by themselves are violations of civil law and even sometimes criminal law.
Breyer then turned to the specific facts of Mahanoy. As a preliminary matter, however, he put “aside the vulgar language” of the student, as Alito in his concurrence and Thomas in his dissent likewise did. In fact, the vulgarity or lewdness of the student’s language never became a major issue in the two lower federal courts as well. For the Mahanoy Court, Breyer was careful to distinguish the student’s vulgar language from the issue of obscenity which the Court has never ruled is protected constitutional speech (see Miller v. California ). Breyer noted that the student spoke outside of school, on her personal cellphone, without identifying the school, and without targeting anyone in the “school community.”
As for the “school’s interest” in what the student said, he made the following three applications of his three larger principles. First, the school did have an interest in prohibiting vulgar language, but in this case, the student spoke outside of school “on her own time.” And, emphasizing parental rights again, he said that there was nothing in the record that documented the student’s parents delegating their authority to the school to control her language outside of school. Moreover, the student’s language conveyed “a message” criticizing the school. It was not just an outburst. Next, nothing in the record showed that the school had a larger program or “general effort” in place to control vulgar language.
Second, Breyer concluded that the student’s language and the knowledge and effects of it in the school community in no way constituted a “substantial disruption” of the school, the “demanding standard” of Tinker. Third, there was no evidence in the record of any significant decline of the “team morale” of the cheerleading squad or of a “specific negative impact” upon any person at the school that might have constituted a “material disruption” of the school.
In his dissent, Justice Thomas concentrated, perhaps excessively, on the history of the establishment of public education in the 19th century. He maintained that parents had indeed delegated their authority to schools and concluded that the school in this case “had authority to discipline” the student.
Overall, the briefs of the parties and amici, as well as the oral arguments in April went back and forth at length about how and when student speech, on campus and off, materially or substantially disrupts schools. That is, the Tinker recognition of the constitutional rights that students carry with them into school became a backdrop issue. Now, all three levels of the federal judiciary have thumpingly concluded that outside of school, those rights are paramount.
But the Supreme Court went even further in its surprisingly broad and even doctrinal 8-1 holding, stressing the primacy of the rights of parents even when they consent to schools acting in loco parentis over their children. By doing so, the Supreme Court may have established Mahanoy as an important and relevant case in the manner of Pierce and Yoder (which struck down mandatory public school attendance laws) and West Virginia v. Barnette (which struck down a mandatory flag salute).
Today, a new “infrastructure” of massive federal government funding, together with federal regulation of all aspects of American life, including education, is being put in place. In intervening in Mahanoy, the Biden administration, perhaps concerned that the personal freedoms of students (and parents) may be used to criticize the public schools it seeks to dominate, repudiated Tinker, one of the historical accomplishments of liberalism, and argued instead for the control of high-school students’ speech outside of school.
In the last six days, however, the Supreme Court, in its 9-0 ruling in Fulton v. Philadelphia affirming the Free Exercise of Religion and its 8-1 ruling in Mahanoy affirming Free Speech has more than decisively reaffirmed that American government is subject to individual constitutional rights. The opposite result in Mahanoy would have created, in the words of Justice Breyer, the authority of government-backed schools to control student speech “24 hours a day”—an unacceptably paternalist policy for a free country.