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Biden Administration Urges Supreme Court to Allow Schools to Censor Student Expression Online


The Biden administration and a Pennsylvania school district urged a skeptical Supreme Court to let school districts suppress free speech by students on social media if they deem it potentially disruptive to school operations.

The Supreme Court of the United States in Washington on May 7, 2019. (Samira Bouaou/The Epoch Times)

The case, Mahanoy Area School District v. B.L., court file 20-255, was heard April 28.

The Biden administration was represented in a 112-minute telephonic hearing by Deputy Solicitor General Malcolm L. Stewart.

The petitioner, the school district in Mahanoy City, Pennsylvania, was represented by Lisa S. Blatt. The student involved in the case, known in court documents as B.L., was represented by David D. Cole, the national legal director of the American Civil Liberties Union. B.L., or Brandi Levy, was a minor at the time the lawsuit was initiated and legal files reduced her name to initials to protect her identity.

In 2017, when Levy was 14 and a freshman, she made the Mahanoy Area High School junior varsity cheerleading team, but as a sophomore, she failed to advance to the varsity squad, remaining on junior varsity, according to the district’s petition.

On a Saturday when she wasn’t present at school, she visited Snapchat, where messages automatically disappear after 24 hours. She posted a photograph of herself and a friend, middle fingers extended, alongside the caption, “[Expletive] school [expletive] softball [expletive] cheer [expletive] everything.”

A screenshot of the message made it to students and teachers. Levy’s coaches suspended her from the cheerleading team for a year.

The legal issue is whether the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District applies to student speech that occurs off-campus.

Long before the internet became part of Americans’ everyday lives, the court held that public school officials may “prescribe and control conduct in the schools” and discipline primary- and secondary-school students for speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

Some say Tinker is outdated.

Applying the precedent “results in the erosion of parents’ rights to direct the upbringing of their children, undermines the role of law enforcement, and encourages a culture of snitching and the heckler’s veto which is deeply contrary to First Amendment values,” the Pacific Legal Foundation, Cato Institute, and author P.J. O’Rourke argued in a friend-of-the-court brief.

“This Court should retire the Tinker test in favor of a rule that permits schools to regulate student speech only when the speech occurs in a place or during a time controlled and supervised by school staff, and only when necessary to address objective disruption of the learning environment.”

Levy sued, and both the U.S. district court and a majority of judges on the U.S. Court of Appeals for the 3rd Circuit held the suspension violated the First Amendment. The 3rd Circuit found that “Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”

But during oral arguments, Blatt said the Tinker ruling should apply off-campus because “speech can cause on-campus disruption.”

“Tinker applies off-campus only when the student targets both a school audience and a school topic, and more broadly, this court can clarify Tinker’s reach both on-and off-campus.”

Chief Justice John Roberts asked what happens if a student is carrying a sign off-campus that says he or she doesn’t approve a school bond funding referendum.

Blatt said such speech couldn’t be regulated by the school because it isn’t directed to a school audience and it’s not a school topic.

Justice Stephen Breyer said B.L. used “unattractive swear words off-campus. Did that cause a material and substantial disruption? I don’t see much evidence it did. And if swearing off-campus did, I mean, my goodness, every school in the country would be doing nothing but punishing. And it certainly didn’t … disrupt others. It didn’t hurt others … as far as I can see in the record.”

Justice Sonia Sotomayor implied swearing may be difficult to regulate because it’s popular among young people.

“I’m told by my law clerks that among certain populations—a certain large percentage of the population—how much you curse is a badge of honor. That would surprise many parents.”

Justice Brett Kavanaugh told Blatt that B.L.’s punishment didn’t seem “tailored to the offense.”

“A year suspension from the team just seems excessive to me,” the justice said.

Stewart criticized the 3rd Circuit’s ruling, saying it would allow B.L. to send out messages on social media “from her home every evening disparaging the coaches, her teammates, and the enterprise of cheerleading. Such messages from a member of the squad would have an evident tendency to disrupt the functioning of a school program that depends on and is intended to instill values of team-building and mutual support.”

Cole argued the reach of the Tinker ruling shouldn’t be expanded.

“At its core, the First Amendment prohibits content discrimination. Its bedrock principle is that a speaker can’t be punished because listeners object to his message.”

The Tinker decision “is limited to school-sanctioned settings,” Cole said. “This court’s ‘school speech’ cases are called that for a reason. The authority they recognize is justified by and limited to the special characteristics of the school environment.”

“Expanding Tinker would transform a limited exception to it into a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go.

“It would also directly interfere with parents’ fundamental rights to raise their children.”

Breyer suggested to Cole they were treading on shaky constitutional ground.

“I’m frightened to death of writing a standard,” the justice said.

“Tinker, after all, doesn’t really write a standard. It just says you can’t regulate school speech unless it substantially disrupts or hurts somebody else.”

Cole said it was a bad idea to allow a school to punish anything it calls “disruption … even if it occurs on the weekend.”

“That’s a very, very dangerous proposition in terms of young people’s free speech, and the court should be very clear, as the Third Circuit was.”

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