The Court Ruling I’ve Been Waiting For Since 2011

In a June 30 decision, B.L v. Mahanoy Area School District, the 3rd U.S. Circuit Court of Appeals  ruled that a Pennsylvania  high school violated a cheerleader’s First Amendment rights when it kicked the young woman off the squad for a message she had posted on SnapChat. A distruct court judge had ruled last year for the ex-cheerleader, whose  post pictured the teen and her friend holding up their middle fingers accompanied by the eloquent sentiment , “fuck school fuck softball fuck cheer fuck everything.” She was  upset because she had only made the junior varsity cheerleading squad, rather than the varsity team.

The ACLU of Pennsylvania argued the case for the girl, so at least sometimes the organization  still puts its partisan politics aside to do its traditional job of looking out for the First Amendment. The group called the ruling a “landmark decision,” finally barring schools from policing students’ off-campus speech using the claim that it might disrupt school activities.

The Supreme Court decision on campus speech, Tinker v. Des Moines Independent Community School District, did not apply to off-campus speech. Tinker held that student speech could be regulated by schools only if it would substantially disrupt school operations or interfere with the rights of others. That case involved a school disciplining students when they wore black armbands to class as a protest against the Vietnam War.

The 3rd Circuit majority ruled .“We hold today 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,”

Because the teen’s speech was outside the school context, Tinker did not apply. The cheerleader’s speech “lies beyond the school’s regulatory authority,” the court said.

The ACLU’s  press release stated that the decision was important “because it recognizes that students who are outside of school enjoy full free speech rights, not the diluted rights they have inside the schoolhouse.”

Bingo.

Finally.

I’ve been laying out the Ethics Alarms position on schools trying to police students’ speech away from school since 2011. In  a January essay that year called Facebook Wars: Parental Abdication, School Abuse of Power, concerning two students in two different schools suspended for what the school administrators called “cyber-bullying.” I wrote in part,

When did schools suddenly acquire disciplinary control over what students do when they aren’t at school? There is no question that the websites involved were inappropriate, disrespectful, cruel and hurtful, just as the rumors and insults included in high school graffiti were, in those glorious days before the internet. Students so abused need to complain to parents, and parents need to talk to the parents of the offending students, and if they can’t or won’t address the problem, then the courts or law enforcement may need to become involved.

But the schools? By what theory is it their responsibility to police the personal lives of their students? Unless I am missing something, the theory is that the media and parents unjustly and lazily blame school administrators for not “seeing the signs” of cyber-bullying and other off-campus school grounds misconduct, and the schools, being terrified of conflict and liability by nature, capitulate by abusing their power.

A school has no more justification for suspending a student based on what he or she posts on a Facebook page than it has to punish a student for an insult he shouts at a fellow student in his back yard.

I also asked in that post, “Integrity question: where is the American Civil Liberties Union? Will it really just sit on the sidelines as government funded schools start shutting down Facebook sites and suspending students based on what they type in their own homes?” I’m glad to finally have  the answer I was hoping for.

Two months later, twelve-year-old Alejandra Sosa called one of her teachers at Chapel Hill Middle School a pedophile, and was suspended for 10 days. William Lambert III, a seventh grader, was suspended for calling the same teacher a rapist, a third student was expelled for posting that the same teacher is bipolar.

Then I wrote,

None of this is appropriate behavior, but it isn’t school behavior. The students are accountable; their parents are accountable. The students owe the teacher an apology, but the school has absolutely no right, legally or ethically, to punish students for what they post on Facebook from the privacy of their homes.

This has got to stop. It is wrong, it is unfair, it is a breach of freedom, autonomy and privacy.

Three years later, Ethics Alarms cheered  the ACLU finally rousing itself from its torpor. In 2012, the ACLU Minnesota Chapter filed a lawsuit against the Minnewaska School District after it suspended 15-year-old student Riley Stratton for a Facebook post, written and published outside of school, in her home, in which she expressed hatred for a school hall monitor who she said was “mean.” After the suspension, Stratton used Facebook to inquire which of her “friends” had blown a whistle on her. School officials brought the young teen into a room with a local sheriff and forced her to surrender her Facebook password. Officials used it to search her page on the spot; her parents were not consulted.  That was way, way over the line, and the school district agreed to pay $70,000 in damages to  Stratton, though it didn’t admit any wrongdoing.

Minnewaska Superintendent Greg Schmidt protested  that the school only wanted to make sure kids understand that actions outside of school can be “detrimental.” “The school’s intent wasn’t to be mean or bully this student, but to really remedy someone getting off track a little,” Schmidt said.  I wrote,

Not your job, you officious, censorious child abuser. This is the sole realm of parental authority. I have seen enough wretched judgement from your breed, Mr. Schmidt to convince me and anyone with a cerebral cortex that school administrators lack the training, wisdom and judgment to know what “going of track a little” is for a 13-year old.

Stay out of my kids’ life and my family’s life. You have enough trouble running schools properly…work on that.

And now, at last, a federal appeals court agrees.

12 thoughts on “The Court Ruling I’ve Been Waiting For Since 2011

  1. This means the ACLU will now have to cobble together some sort of rationalization, to be used by their current bedfellows, as to why this ruling doesn’t apply to the kid who posts a pic of himself with the new shotgun he got for his birthday.

    • I posted yesterday that the Left inconsistently applies the First Amendment to when it suits their purposes. Specifically, I pointed out that they have no problem with endorsing filthy language in the public sphere. Put Betty White in a mud-face and they’re nowhere to be found, but try to stop profanity at the 8 PM hour and the First Amendment is so sacred to them that it’s written in blood.

      The ACLU will not advocate for a kid with a shotgun because they don’t support the Second Amendment and would argue that the First doesn’t apply here since the mere appearance of a gun implies a threat of violence. The Courts may disagree with that, but a kid whose parents have limited resources will have a hard time finding an ACLU lawyer to help them so they are more likely to let the school’s punishment stand rather than fight it.

      The feistier among them might post their complaint all over their local news station’s Facebook page, but that’s about as far as it’ll go and the precedent of school’s having the power to punish students for off-campus speech will continue to solidify in their minds as being factual since there are few reputable organizations out there that will be willing to educate the public otherwise.

      • I posted yesterday that the Left inconsistently applies the First Amendment to when it suits their purposes.

        There is a series now coming out in the NYTs:

        The America We Need is a Times Opinion series on emerging from this crisis with a fair, resilient society.

        What is curious about this is the degree to which it is a Maoist top-down ideological intervention in culture. In such a project, an ideological project in essence, every former *certainty* is questioned and doubted. The society will be moved in a radical sexual direction and all the old norms will be overturned. This was the second wave of Maoist intervention, the first being the Civil Rights Movement.

        So one is allowed to speak as long as one says the right thing. But if your ideas run contrary to the currents being supported in the present, you are going to be vilified.

        Everything that is happening is happening for reasons related to specific causal chains. And if you wanted to take it back to its sources you will take it back the American Civil War.

        And if that is so how interesting it becomes to ask you-plural to examine your core predicates. The ones you have, the ones you adamantly hold to, the ones that direct you within these absolutely and totally progressive categories. Race, sexuality, gender . . . and now economics.

        What I try to point out is the degree to which you are ideologically committed in each of these categories.

      • Alright. Good Lord. I guess I’ll just have to continue … Jeez this is tiresome …

        The ACLU will not advocate for a kid with a shotgun because they don’t support the Second Amendment and would argue that the First doesn’t apply here since the mere appearance of a gun implies a threat of violence. The Courts may disagree with that, but a kid whose parents have limited resources will have a hard time finding an ACLU lawyer to help them so they are more likely to let the school’s punishment stand rather than fight it.

        The ACLU, along with most of the ideological progressive establishment, and now a whole system of US corporations in concert with embedded government and cultural influencers discerns that with the presidency of Donald Trump that we not only could be but are at a dangerous juncture socially, politically, and ideologically.

        I have come to understand that no one of you understands this. You do not understand that DT was *called forth* in a way to energize and give power and voice to the *original demographic*. And this directly has to do with supremacy. That dreaded word which none can pronounce. Or the political and social power of a demographic that formerly had ‘supermajority status’. It relates to the ability to control and direct your nation. You will have to recover that belief in supremacy as I define it in order to stop the destruction of and the remaking of your nation.

        Wake up!

        The System has sounded the sirens in all the cities of the US and indeed throughout the world. Where nativist, nationalistic and culturally hegemonic groups have been manifesting their power (to defend their interests) the System has set out to define why they are and this is evil.

        The ACLU clearly sees what is going on, as does the New York Intellectual Class, and it recognizes the extreme danger if the *original demographic* would succeed in turning back the Hyper-Liberal clock and the Radical Progressive clock which tics and tocs exactly in measure to your and to Jack’s and almost everyone who posts on this blog’s internal ideological metronome.

        The ACLU along with an entire and very large (and influential) intellectual class and a huge swath within the System (including Deep State and corporate state) has set itself now the task of a concerted effort to get rid of Donald Trump. This will lead to a supreme effort to crush, isolate, destroy, economically disempower and socially vilify any white person who has the foolish audacity to desire or to work for anything different.

        This is not about a kid and a shotgun. That kid and his gun are irrelevant within the larger frame of what is going on today, and that has to do with YOUR DISPOSSESSION.

        Are you a smart, thoughtful person? Or are you something else? Because what you write here just does not seem that bright to me. You mistakenly focus on the small thing, the not-so-relevant-thing, when you should see the larger thing.

  2. But the schools? By what theory is it their responsibility to police the personal lives of their students? Unless I am missing something, the theory is that the media and parents unjustly and lazily blame school administrators for not “seeing the signs” of cyber-bullying and other off-campus school grounds misconduct, and the schools, being terrified of conflict and liability by nature, capitulate by abusing their power.

    A school has no more justification for suspending a student based on what he or she posts on a Facebook page than it has to punish a student for an insult he shouts at a fellow student in his backyard.

    […]

    Not your job, you officious, censorious child abuser. This is the sole realm of parental authority. I have seen enough wretched judgement from your breed, Mr. Schmidt to convince me and anyone with a cerebral cortex that school administrators lack the training, wisdom and judgment to know what “going of track a little” is for a 13-year old.

    Stay out of my kids’ life and my family’s life. You have enough trouble running schools properly…work on that.

    To the question: “By what theory is it their responsibility to police the personal lives of their students?” the answer would appear to be somewhat complex. First, one has to begin from the premise that in our ethical and moral culture — what guided and created the Occident for at least 1000 years and more — a given person could define, and would define as necessary and good, the existence of Authority. It was certainly someone’s responsibility to guide and influence the personal lives of children. There were social and agreements about this.

    Now, we can recognize that in our present day (this has been going on for a long while now) there has been a continuing rebellion against *rules & regulation*. Indeed it has come about that *rebellious children* rampage through the streets, burn buildings, assault and even kill people. What does this mean? It means many things but the main one is that We Do Not Agree Anymore. And we are not going to ‘come back into shared agreements’ anytime soon. People therefore divide off from one another. Ideas and perceptual structures diverge not just in small ways but in major ways. This will go on until, quite literally, the social and political structures crack.

    But let’s examine why is is turning out that the schools are assuming a responsibility to *police* the speech, the thought, and the actions of kids. The School becomes an extension of the State, doesn’t it? And the school (in most cases?) has gone to its progressive limits in its intervention as determined by the larger social ideologies of the day. At least today, and as I see things, society-at-large seems to show itself capable and interested in intervention when the child is going against the social grain. If it is not cyber-bullying it might be improper notions about homosexuals or notions about race or gender. The school believes that it has to intervene, but it does so to enforce new rules & regulations for a new Left-oriented progressive culture.

    Unless I am very mistaken what I describe here is the larger trend. The smaller trend is when some conservative-oriented school intervenes in the life of a child to enforce now outmoded notions of *acceptable behavior*.

    A school has no more justification for suspending a student based on what he or she posts on a Facebook page than it has to punish a student for an insult he shouts at a fellow student in his backyard.

    While I cannot disagree with this, and I certainly understand the legal concept behind it, I also recognize that it indicates and represents that a school — that social institution responsible for paideia — has been divested of a larger authority. It could be argued that a school should have a great deal of authority to intervene in the life of students. And that the majority in the culture and society would want that — would even insist on it. A moral or ethical breach would be taken seriously by all concerned.

    But I ask you to consider — by way of example — the recent behavior of Claudia Conway (KellyAnn Conway’s daughter). I know this is beyond the scope of this immediate legal concern but I have been thinking about this girl since I saw her right-on-the-verge-of-pornographic Tik-Tok and Twitter videos of herself in her undergarments. Here is a 15 years-old girl who shows herself absolutely beyond control. True it is that as a girl I can see exactly what is going on in her at a psychological level and it is scandalizing indeed. But on another level, a more abstract level, I see a person who has spun out of control. Obviously this is related to sexuality and sexuality is the ‘drug’. But the meaning is far far larger. It has to do with what is going on in the culture at profound, psychological levels.

    So then: Who can intervene? If she were a ‘racist’ or said something minimally oppositional to the present coerced opinions of the day she would be ‘cancelled’. Nothing would be withheld as far as condemnation. Not only from the school but from all quarters.

    Not your job, you officious, censorious child abuser. This is the sole realm of parental authority.

    This is completely and flatly wrong. It is morally and ethically wrong. It is legally true however. Now what does this mean? What it seems to mean is that Authority is not allowed to exist. And this is because there have broken down the *agreements* that used to be common and acceptable. One can spend much time trying to understand and describe how this break-down has come about (it is very very complex). In that vacuum the only thing that can intervene is ‘the legal definition’. Actually, you cannot intervene morally and ethically in the life of a child today. Or to put it another way ‘the culture itself’ is rebelling against those who assert authority. What ‘authority’ has valid authority? If that child listens to the *message* of rap music or other rebellious forms, that child has ample ammunition to oppose the parent’s authority. Because structures of authority are being intensely opposed.

    Mr. Schmidt to convince me and anyone with a cerebral cortex that school administrators lack the training, wisdom and judgment to know what “going of track a little” is for a 13-year old.

    This is true, but a few things can be said here. One is that we live on the cusp of the ascendency of a kind of Maoist Cultural Revolution. I guess it will happen that the children will wave those flags because they have received the message of Social Justice and the message of *influencers* like AOC and have internalized them. They believe they are pursuing The Righteous Cause — these are solid evolutions of interpretations of late Americanism — and so they must turn against the Authority that is going out of style and becoming *outmoded*.

    Yet in another time, in another *world*, Mr Schmidt should have a great deal or insight into the internal life of the children under his care, and should be able to see, in tremendous clarity, what the beginning of deviation looks like and what are its signs.

    If politics is downstream from culture, then I suggest we have to back up to examine what is going on in this *cultural* realm to understand why ‘politics’ is becoming thoroughly rebellious. And why the ‘cracks’ are becoming so significant that they will eventually crack the foundation on which the largest *agreements* have been erected.

    So, a victory for the ACLU and the internal logic of legalisms. A battle won within a far more significant battle that is being lost.

    • Good one, Ali; you’re on a roll! Some say the current “disturbances” are like the social upheaval in the 60’s and 70’s, but though they may be cloaked in similarities, in fundamental ways they are entirely opposite.

  3. These cases have the potential to get muddy very quickly. If cyberbullying on Facebook (accessed by cellphone) occurs during school hours on school grounds, it is obviously the schools job to address that. If the incident occur during the school day and continues into the evening, the school’s duty to address messages sent during the school day are still school conduct. But what happens when the worst offenses of a continuous exchange occur just after students get off the bus?

    Now consider schools that have a private site for exchanging assignments and asking questions outside school hours. Cyberbullying via that platform is obviously school conduct. But what about a school that provides a laptop to every student. Is it school related conduct if cyberbullying via Facebook is received on a school laptop outside of school hours, but initiated from a private computer?

  4. My only question is, “How in the world did it take so long to finally get to this correct decision?”

    Worse, how many have suffered permanent reputational and social damage along the way?

    • I wonder whether the ruling will be appealed to the Supreme Court. If it is, I hope they will simply deny cert.

      • I agree, that would be best. And given the makeup of the court and previous rulings with Kennedy there, I think it most likely they would let it stand unless there is a split with another circuit, like the Second or Ninth.

        Absent that, I very much doubt if they would grant cert.

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