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.”
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.
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.