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276 – Vulgar Free Speech

  • Are there limits to Freedom of Speech?
  • What are the limits of schools to discipline our children?
  • When we turn our children over to government run schools, do they effectively become the parents?

I disapprove of what you say, but I will defend to the death your right to say it.”

The Friends of Voltaire” by S. G. Tallentyre (Evelyn Beatrice Hall)

This quote has been the cry of free speech advocates for decades, but how is society to treat those, especially minors, who violate the standards of speech considered acceptable in public? In the case Mahanoy Area School District v. B.L., the question is, what are the legitimate actions of public schools in disciplining the vulgar speech of students? In its opinion, the Supreme Court illegitimately applied the First Amendment to state actors, but that is nothing new. By far the most interesting part of the opinion is the role the justices believe schools have in parenting children. And you may be surprised by what the lone dissenter in this case said regarding the subject.

I don’t know about you, but I find vulgar language revolting, especially from the mouth of a young lady. While there was a time in this country when such language was frowned upon, it’s now more and more accepted. Which brings us to the case of Mahanoy Area School District v. B.L., who as a minor, was represented by her parents. According to the opinion’s syllabus, B.L. failed to make the schools varsity cheerleading squad and reacted by posting vulgar language and gestures on Snapchat. When school officials learned of the posts, they suspended B.L. from the junior varsity squad. After unsuccessfully attempting to reverse the punishment, B.L. and her parents sought relief in federal court.

First Amendment

It seems like I say this a lot, but it’s worth repeating. This cannot be a First Amendment violation because Congress had no part in the law.

Congress shall make no law … abridging the freedom of speech,

U.S. Constitution, Amendment I

If what the school did was a violation of B.L.’s freedom of speech, then it was a violation of Article I, Section 7 of Pennsylvania’s Constitution.

The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being

responsible for the abuse of that liberty.

Pennsylvania Constitution, Article I, Section 7

Since B.L. did not sue in state court, but in federal, many people, especially lawyers and judges, claim that the Fourteenth Amendment “incorporates” the First Amendment to the states. However, that is not what that amendment says.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV, Section 1

Since freedom of speech is protected from state intervention by the constitution of that state, not the constitution of the United States, the Fourteenth Amendment doesn’t make this a First Amendment issue. At best, had the Commonwealth of Pennsylvania denied B.L. the privileges or immunities of others within her state, then she would have a Fourteenth Amendment cause, not a First Amendment one.

Schools reaction

  1. L.s Snapchat friends” included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B. L.s posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches visibly upset” about B. L.s posts. … Questions about the posts persisted during an Algebra class taught by one of the two coaches.

Mahanoy Area School District v. B.L.

Apparently B.L.’s posts went to some of the cheerleaders, one of whom showed them to her mother, who happened to be a cheerleading coach. As the posts spread, several students upset by them approached the coaching staff. In fact, questions about the posts persisted during an Algebra class taught by one of the coaches.

After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. As a result, the coaches suspended B. L. from the junior varsity cheerleading squad for the upcoming year. B. L.s subsequent apologies did not move school officials. The schools athletic director, principal, superintendent, and school board, all affirmed B. L.s suspension from the team. In response, B. L., together with her parents, filed this lawsuit in Federal District Court.

Mahanoy Area School District v. B.L.

The question that should have been asked at this time was: Is vulgarity considered abuse of freedom of speech in Pennsylvania? Instead, the parents filed a lawsuit in federal court. The District Court and the Third Circuit claimed that B.L.’s punishment violated the First Amendment, an opinion I’ve already debunked. All this was done based on the decision of a previous court in the case Tinker v. Des Moines Independent Community School Dist. The Mahanoy Area School District petitioned the Supreme Court, asking it to decide “[w]hether [Tinker], which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.” The court held that:

While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.s interest in free expression in this case.

Mahanoy Area School District v. B.L.

Tinker v. Des Moines Independent Community School Dist.

In Tinker, we indicated that schools have a special interest in regulating on-campus student speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a schools regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

Mahanoy Area School District v. B.L.

Notice the language: “In Tinker, we indicated that schools have a special interest in regulating on-campus student speech“. In other words, it was not the Constituiton or law that granted schools the power to regulate speech, but the Supreme Court. This in itself is a violation of the Constitution, since the judicial power of the United States does not include the legislative or law making power. Are there situations when a school needs the authority to regulate student’s speech? Yes. Speech that includes bullying, harassment, or threats is not covered under free speech because it infringes on the rights of others. As the Commonwealth of Pennsylvania puts it, that would be an abuse of that liberty. It’s not within the power of the courts to delegate that power, neither is it within the power of the court to take a state free speech issue and make it a federal one.

By doing so, the court has taken the regulation of student speech to a whole new level.

In Loco Parentis

In Loco Parentis[ Latin, in the place of a parent.] The legal doctrine under which an individual assumes parental rights, duties, and obligations without going through the formalities of legal Adoption.

The Free Legal

It’s important to understand the concept of in loco parentis. There are times when your children are in the care of others. During those times, the law recognizes that parental rights are assumed by those caretakers, though that brings up a couple of interesting questions. First, what are the limitations of in loco parentis rights? Do those caretakers truly assume parental rights, or are they merely delegated a limited number of rights while the children are in their charge? Second, does government have the authority to assume in loco parentis, and act against the will of the parents? Since governments have passed laws that require that your children go to school, does that mean that government can transfer your rights as a parent to the school? And if so, what are the limitations of the rights transferred?

In the past it was recognized that a school acting in loco parentis was limited to maintaining the safety of the student in a working educational environment. So a school could discipline a student for fighting or disrupting a class, but could not administer medication or authorize medical procedures except in the case where the student was in imminent threat of death or serious bodily harm. However, that view has changed.

I remember as a child, having to take some medication while at school. I had to take the medicine to the school nurse, along with a note from my parents. I was required to go to the nurse’s office and take the medicine in front of her. I could not even get an aspirin without the nurse contacting one of my parents for permission. Today, we have reports of schools taking children for elective treatments, not only without their parent’s permission, but without their knowledge. So this concept of in loco parentis seems to have morphed from a limited power to protect the student, to an overruling of parental rights at the sole discretion of the school district.

Off-Campus Speech

But three features of off-campus speech often, even if not always, distinguish schoolsefforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus.

Mahanoy Area School District v. B.L.

Now let’s discuss the question of off-campus speech. According to the court, a school rarely acts as a parent when the student is off campus. Think of the permissions slips we needed our parents to sign before we could go on a field trip. They authorized the school to act in loco parentis while off campus. Today, while the court says schools rarely stand in loco parentis when a student is off campus, they’re about to contradict themselves.

Second, from the student speakers perspective, regulations of off- campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a schools efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.

Mahanoy Area School District v. B.L.

If the school can regulate off-campus speech, then they’re acting in loco parentis 24 hours a day, seven days week. Notice that the opinion states that courts must be more skeptical of a school’s effort to regulate off-campus speech, not that the school doesn’t have the authority to regulate off-campus speech, even with limited exceptions. This isn’t in loco parentis, but pro parentibus: Replace the parents.

Third, the school itself has an interest in protecting a students unpopular expression, especially when the expression takes place off campus, because Americas public schools are the nurseries of democracy.

Mahanoy Area School District v. B.L.

Public schools don’t have an interest in protecting student speech, they have a duty. Schools are institutions of instruction, not “nurseries of democracy”. Perhaps, if the schools these justices went to had spent more time instructing them and less time considering what was in the school’s interest, these men and women would realize not only that America is not a democracy, but that our Founding Fathers feared that it would become one.

Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

James Madison

The Dissent

For those of you who view Justice Thomas as a “conservative’, this dissent may leave you sadly disappointed.

When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus?

Mahanoy Area School District v. B.L. – Thomas Dissent

Indeed, what authority does a school have off-campus? Are our children property of the state? Does the state have the first word on conduct and behavior of children 24 hours a day?

A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent.

Mahanoy Area School District v. B.L. – Thomas Dissent

Once again Justice Thomas places the opinions of other courts above the rule of law. He didn’t dissent because the First Amendment specifically limits Congress or because there is no language in the Fourteenth Amendment to expand that to the states. His argument is that, historically, courts have allowed schools to punish students for their off-campus speech. He then goes on to cite examples of state court opinions that state:

A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.

Lander v. Seaver, 32 Vt. 114 (1859)

Justice Thomas then goes on to claim that B.L.’s speech had “a direct and immediate tendency to . . . subvert the [cheerleading coach’s] authority.” If that is the case, then any disagreement with a teacher or school policy could be regulated as “subverting” the school’s authority. So much for Free Speech.

Conclusion

If B.L. were my daughter, I would have handled the situation very differently. However, she is not my daughter, so I have no authority to punish her for her actions. And if I cannot do so individually, how can I delegate that authority to a government agent?

The question that never seemed to be asked was, does the school have the authority to regulate who participates in school activities, including what qualifications are required? I loath the idea of government actors regulating the speech of others. However, as the Pennsylvania Constitution notes, we are all responsible for the abusive use of our liberties. We can all speak as we wish, but we are also responsible for the consequences of that speech. When I worked for a corporation, I could be fired for language that was derogatory of that company. In the same vein, B.L. does not have a right to be a cheerleader. If her actions are derogatory of the school and its extra-curricular actives, there should be consequences for that. If B.L. has shown the tendency to “fly off the handle” for a decision she disagrees with, what would happen if she disagreed with a referee’s call during a game? Could another profanity laced incident happen in public?

I believe her parents have done B.L. a disservice. Rather than taking the opportunity to learn from her mistake and find a way to make amends, they have taught her that the proper response to not getting what you want is to sue all the way up to the Supreme Court.

As for the court, it once again claimed the authority to be above the law. They ignored the language of the First and Fourteenth Amendments in favor of a prior court’s interpretation. They ignored the jurisdictional issue, giving future courts another nail in the coffin of judicial supremacy with which to seal our liberties away forever. And while claiming that schools’ power of in loco parentis is limited, their actions show that they believe the schools are superior to parents in most situations.

Whether you agree that B.L. should have been suspended from the cheerleading squad or not, ask yourself these questions. Who are the parents, the real parents or the school? Should there be no consequences for behavior that has denigrated a school activity? And lastly, was it the emotional outburst that should be punished, or the language that was used?

 

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Paul Engel founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on Amazon and Apple Books. You can also find his books, classes and other products at the Constitution Study website (https://constitutionstudy.com). You can reach him at paul@constitutionstudy.com