Pennsylvania School District Asks Supreme Court To Allow It To Continue To Violate Students' First Amendment Rights

from the who's-being-disruptive-now dept

The Mahanoy Area School District of Pennsylvania, which currently serves 11,000 residents and 1,100 students -- wants to keep wasting local and federal tax dollars defending its decision to infringe on the free speech rights of students.

In 2019, the district was sued by "B.L.," a student whose f-bomb laden Snapchat message was reported to school officials. Using the vernacular of high school students, B.L. expressed her displeasure with things that often displeased students.

fuck school fuck softball fuck cheer fuck everything

As a result of a snitch within the cheer team's midst, B.L. was booted from the cheerleading roster and suspended by the school. But the Snapchat selfie with the f-words was taken while B.L. was off campus and after school hours. It made no difference to the school, which felt it had the right to punish B.L. for any expression regarding school activities. In support, it pointed to the "agreement" B.L. had signed when she signed up for cheerleading, forbidding the creation of any "negative information" about the school while participating in extracurricular activities.

The district court said the school went too far, extending its control of students' speech past the confines of the school campus. If the speech had proven to be disruptive to other students or the business of schooling, it may have been within its rights to punish B.L. But the facts showed the only people "disrupted" were the person reporting the Snapchat, and the cheerleading coach who decided to be offended by it. Oh, and B.L., who was (temporarily) no longer a student or a cheerleader.

The district continued to insist it was right. It took its case to the Third Circuit Court of Appeals, which pretty much said the same thing the lower court did. Then it went further, pointing out the school's inability to stay within the confines of its own extracurricular activities policies.

B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.

This punishment of B.L. violated her rights. This is indisputable, said the Third Circuit. Any other interpretation would allow schools to punish students for exercising their First Amendment rights, no matter how, when, or where they exercised them.

As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.”

The school district is unwilling to accept this. It apparently strongly believes it should be able to punish speech in whatever dislikable form it encounters. The school district is asking the Supreme Court to reverse its two federal court losses.

Its Supreme Court petition [PDF] is pretty terrible. On the upside, it's short. But it opens with a disturbing assertion that makes it clear far too many schools have far too little respect for the rights of their students. Referring to its two consecutive defeats in court, the school says this:

Commentators called the decision a “bombshell”; respondents’ counsel dubbed it a “landmark.” For amici representing thousands of school districts and 1.7 million teachers, the decision is a disaster.

A "disaster." That's what the district calls its inability to punish students for stating they dislike school/school activities while speaking to friends at off-campus locations. According to its brief, the school thinks its two federal courts losses will somehow prevent schools from addressing serious harms caused by off-campus speech.

Relying on Tinker, several States within the Third Circuit passed laws requiring schools to address off-campus cyberbullying or harassment with a close nexus to the school. Absent this Court’s intervention, schools within the Third Circuit cannot protect student welfare without risking damages suits.

All I can say to this is "good." This will require schools to take more care when addressing cyberbullying and harassment. And if it is occurring off-campus, it's probably nothing the school should be expected to take responsibility for, even if it's nominally charged with ensuring student safety. There are holes in the coverage, to be sure. But not everything that affects students is actually a school's problem.

And the opening paragraph further undercuts its case. The district believes there's a circuit split that must be resolved by the nation's top court. But there's a key element missing from this case -- an element the school states but can't actually show has any bearing on the case at hand.

In five circuits and under the law of the Pennsylvania Supreme Court, schools can discipline substantially disruptive off-campus speech that is closely linked to the school environment. But the decision below disempowered 5,800 schools within the Third Circuit from addressing this same speech.

There was nothing "substantially disruptive" about B.L.'s speech. The biggest disruption was felt by B.L., who was kicked off the cheer team and suspended. Otherwise, school operations and the district's student body remained unaffected.

The district also mischaracterizes the Third Circuit's ruling to advance its own narrative: that the speech was disrupted, despite all evidence to the contrary:

Respondents seek to erode this mountain into a molehill by contending (at i, 14-17) that B.L.’s speech was not substantially disruptive and thus not subject to discipline even had she spoken out at school. But the Third Circuit rejected that argument, reserving the substantial-disruption question after acknowledging that B.L.’s posts undisputedly upended the cheerleading program.

The Court didn't do anything of the sort. The school only asserted that the Snapchat in question was "likely" to "disrupt" only the cheerleading program. There's a lot of ground between disrupting the regular education process and "upending" one extracurricular activity. Without more to deal with, the Third Circuit decided there wasn't enough on the record to justify setting precedent on this issue.

First, our choice to sidestep the issue in J.S. adhered to the maxim that, where possible, we should avoid difficult constitutional questions in favor of simpler resolutions. There, it was sensible to avoid the issue because we could resolve the case by applying well-settled precedent addressing the substantial disruption standard in the context of the school environment. But that is not the case here. The School District’s defense of its decision to punish B.L. focuses not on disruption of the school environment at large, but on disruption in the extracurricular context—specifically, the cheerleading program B.L. decried in her snap.

The only part of the Third Circuit's decision that acknowledged any sort of "substantial disruption" was the concurring opinion, which said finding in B.L.'s favor might pose disciplinary difficulties in other situations. What the concurrence didn't say it that it found B.L.'s Snapchat "substantially disruptive."

For good measure, the district conjures COVID to justify further limiting the Constitutional rights of its ~1,100 students… but with the Supreme Court, which could limit the rights of millions of students all at once.

[T]he question presented recurs constantly and has become even more urgent as COVID-19 has forced schools to operate online. Only this Court can resolve this threshold First Amendment question bedeviling the Nation’s nearly 100,000 public schools.

Chances are, this court won't. Most of the nation's 100,000 schools aren't "bedeviled" by this case emanating from one small district in Pennsylvania -- one that deals with harsh punishment being handed down over speech that occurred off-campus and after school hours. There's nothing in this very brief Brief that justifies the nation's top court disturbing a narrow ruling that found a school harmed the Constitutional rights of one student by overreacting to some online swearing. Unfortunately, this means Pennsylvania residents are still paying the district to argue against respecting their rights. Hopefully, this will be dumped as soon as SCOTUS has a chance to lay its eyes on it.

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Filed Under: cheerleading, free speech, mahanoy area school district, pennsylvania, scotus

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  • identicon
    Anonymous Coward, 6 Jan 2021 @ 1:38pm

    • the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.”*

    the thing is, any such rule, even if one signs a paper acknowledging it, should be unenforceable and stricken when discovered by responsible adults.

    B.L. "upended" the cheerleading program? gimme a fooken break.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2021 @ 3:24pm


      should be unenforceable and stricken when discovered by responsible adults.

      Welcome to the US. Where even basic human rights are always trumped by the right to be subjected to unilateral contracts of adhesion. (In a privatized court of arbitration of course.)

      There's a reason why the rest of the world regards the US as a bunch of conmen.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2021 @ 9:48am

        Re: Re:

        Welcome to the US. Where even basic human rights are always trumped by the right to be subjected to unilateral contracts of adhesion.

        Minors are one group that might still be protected from that.

        reply to this | link to this | view in chronology ]

  • icon
    Haywood (profile), 6 Jan 2021 @ 1:52pm

    Gotta get this settled

    The legal opinions need to be set to move on to the civil action that will likely bankrupt the school district.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Jan 2021 @ 2:01pm

    If someone saying 'fuck' a few times is enough to cause significant disruption in a school program then the problem isn't on the side of the person swearing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2021 @ 3:32pm

    is it any wonder students are using VPNs from school

    When I ran a small VPN service years ago, I did see a lot of connections coming from schools going to social media all over the place.

    By using a VPN schools would not know where students were going on the Internet.

    I used to take payments in Bitcoins, as the service I ran had a "do not know who you are and don't want to know" policy. Payments in Bitcoin, if done right, could not be traced back to the person who bought it.

    This is another issue I expect to see addressed the next time the CFAA is updated

    Under US laws, it does not currently violate the CFAA to use a VPN to bypass school or work firewalls, but that could change I think.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 6 Jan 2021 @ 5:38pm

    B.L.'s sentiments vindicated by school's litigation.

    Fuck authoritarian institutions.

    reply to this | link to this | view in chronology ]

  • identicon
    Cowardly Lion, 7 Jan 2021 @ 12:55am

    Well, there's your problem...

    The Mahanoy Area School District of Pennsylvania ... wants to keep wasting local and federal tax dollars....

    Unless this school district has it's own in-house lawyer who's bored, sat around twiddling their thumbs, then someone outside this body must be signing off on this horseshit.

    I thought public education in the USA was grossly underfunded. How the hell is there a budget for spurious litigation but not for text books and teachers salaries? Where the hell are their priorities? TBH I'm not sure if this concerns a non-public, charter faculty, the same argument still applies. Priorities. Priorities. Priorities.

    *shakes head in dismay

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    me, 7 Jan 2021 @ 5:01am

    School is indoctrination NOT education

    reply to this | link to this | view in chronology ]

  • identicon
    pegr, 7 Jan 2021 @ 7:28am

    Bong Hits 4 Jesus!

    Remember the "Bong Hits 4 Jesus" dude? Was not on school grounds, was 18 years old, had his punishment DOUBLED when he protested, and his punishment was UPHELD by no other than SCOTUS!

    Fun fact: BH4J dude got a settlement from the state of Alaska, as his punishment violated the Alaska Constitution.

    reply to this | link to this | view in chronology ]

  • icon
    Slow Joe Crow (profile), 7 Jan 2021 @ 9:31am

    Action for misuse of public funds?

    Since it appears that certain individuals in the school district are pursuing this action out of butt hurt rather than any sort of logic the taxpayers should be suing them for wasting money, not mention starting a recall petition for every elected official in the school district

    reply to this | link to this | view in chronology ]

  • identicon
    sebastianae, 7 Jan 2021 @ 8:42pm

    maybe the District need to focus on something else?

    Mahanoy Area School District was ranked 433rd out of 493 Pennsylvania school districts, in 2015, by the Pittsburgh Business Times.

    reply to this | link to this | view in chronology ]

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  • identicon
    Paul Albano, 10 Jan 2021 @ 6:46am

    Mahanoy case above

    Gee, the SCOTUS accepted this case. Man, you guys were dead wrong above. It’s not about this small district. It is about the property right different between a suspension from school, which is a property right requirement and the basis of all prior SCOTUS decisions, and suspension from an extracurricular activity. So according to you and your friends, a kid playing on the soccer team doesn’t get in a game. The kid crosses the street from the school owned field onto private property and takes from his jersey and yells fuck the coach, fuck the school, fuck soccer. Which is what BL essentially did. So, you’re saying the coach cant suspend the kid from soccer for acting like an idiot because the soccer player was off school property and his/her speech is protected. That’s absurd.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 10 Jan 2021 @ 12:35pm

      Shouting from across the street.

      Suspended from the team for conduct unbecoming a letterman, maybe. Suspended from school for vulgar dissent against authority? Hell no.

      reply to this | link to this | view in chronology ]

    • identicon
      Socialist Worker, 13 Jan 2021 @ 9:03pm

      Re: Mahanoy case above

      The kid is under school authority when at they are a soccer player on a team game for a home or an away game. When the game is over and you've left school control legitimately then your speech can not be disruptive to the educational process as it could be on campus. The Tinker decision required that speech to be disruptive to the educational process to be punishable not just controversial. If the FCC can't regulate it it's hard to see how the school needs to do so. It has nothing to do with school property but who is in control of the minor child and the child's free speech rights. Had the statement been made at school then the school could argue it was disruptive or had it been a threat of some type rather than bad or improper language.

      reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 12 Jan 2021 @ 3:04am

    A Minor Nit to Pick

    The paper you provide is actually the district's reply, wherein they pay their attorneys to respond to the student's answer. Their arguments may be better laid out in their initial petition.

    Then again, they may simply lack good arguments. That can happen when you are associated with school boards. Stupidity is the second most common element in the universe, and it does seem to get concentrated in some organizations.

    reply to this | link to this | view in chronology ]

  • icon
    jaack65 (profile), 16 Jan 2021 @ 4:45pm

    Taxes Go Up When Idiots Won't Stop Suing

    The district's attorney's billing must be astronomically high, where does this "fucking" money come from but the people in the district. Even single people are being monetarily punished by this frivolous continuous suing. The district sounds like Trumpians who won't take losses of suits, yet keep suing with no evidence of harm. They try to deny the right of students to express themselves outside of the school's jurisdiction. Someone at the county level must reign this lawless school districts officials who can't stand loosing even at the Third Circuit Court of Appeals. B.L. did not give up the 1st Amendment protection by being a student in this district. Its a small county with limited funds, yet SCOTUS appeal will cost a fortune to the county. They should let the public know the legal costs so far, which should shock everyone!

    reply to this | link to this | view in chronology ]

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