Can Schools Control Student Speech? Part II

 

This is the second blog entry about the case of Brandi Levy. Readers should refer to the first post, dated January 2, 2021, and titled “WTF -- Can Schools Control Student Speech?” to comprehend fully this new post. The Levy case continues, and it will be a very important precedent in the highest court in the land. Access the first entry by clicking here:  https://allthingswildlyconsidered.blogspot.com/2021/01/wtf-can-schools-control-student-speech.html.

Round Three. Brandi Levy's Snapchat post and the punishment that followed are now at the center of a major U.S. Supreme Court case that tests the boundaries of school discipline and the rights of students to free speech.

"This is the first time that the U.S. Supreme Court is going to decide whether the rules that apply to kids when they're in school also apply to their speech when they are outside of school," said Sara Rose, an American Civil Liberties Union attorney defending Levy in the case.

The court in a famous 1969 decision (Tinker v. Des Moines) said that students don't surrender their First Amendment rights at the schoolhouse gate, but that educators can limit speech on school property when it's materially disruptive. It has not addressed how school-related speech expressed off-campus can be handled.

Levy maintains her Snapchat did not violate a school cheerleading code that required "respect" and "no negative information" to be expressed while part of the team. She explained …

"I think that it didn't because I was not directing towards any coaches. I didn't have the school's name in it. I didn't have the coaches' name or any teammates' names in it.”

Two lower federal courts sided with Levy in the dispute, ordering her returned to the team in 2017 and allowed her to continue her cheerleading career. Later, in a sweeping decision, a federal appeals court affirmed the decision, saying a school's authority to enforce the rules "does not apply off-campus."

Larry Levy, Brandi's father, who sued the school with help from ACLU, contends …

"If they would have just taken her aside and said, 'Watch; be careful.' But the action they took, I think reached above and beyond where they should be.”

Rose said …

"When they're not under their school supervision, kids are under their parents supervision and the parents are the ones who should be able to decide what's appropriate for their children to say when they're at home.”

But, the Mahanoy School District says in court documents that the appellate decision threatens to handcuff coaches, principals and teachers nationwide.

The school district writes in its brief to the Supreme Court … 

"The First Amendment is not a territorial straitjacket that forces schools to ignore speech, that disrupts the school environment … Coaches and school administrators, not federal courts, should decide whether the coach can bench someone or ask a player to apologize to teammates. The First Amendment is not a tool for micromanaging school determinations."

Paul Healy, executive director of the Pennsylvania Principals Association, which is backing the Mahanoy Area School District in the case, says …

"This case is so important because it has implications, not just for school leaders in Pennsylvania, but across the nation to be able to provide for the safety and welfare of students in their schools … Schools must be able to discipline students for inappropriate conduct online if they would clearly be disciplined for the same conduct offline.”

(Devin Dwyer and Jacqueline Yoo. “Teen cheerleader's Snapchat brings Supreme Court clash over schools and free speech.” ABC News. April 02, 2021.)

The Supreme Court will hear arguments in the case on April 28 and hand down a decision by the end of June.

What Stands Before the Court

The 1969 landmark case of Tinker v. Des Moines affirmed the First Amendment rights of students in school. The Court held that a school district violated students’ free speech rights when it singled out a form of symbolic speech – black armbands worn in protest of the Vietnam War – for prohibition, without proving the armbands would cause substantial disruption in class.

In the majority opinion of Tinker, delivered by Justice Abe Fortas, the Court stated students should not be punished for their "passive expression of opinion" and that the ban on armbands came about as a "urgent wish to avoid the controversy … First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Fortas …

“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”

(John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners, v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al. U.S. Supreme Court. February 24, 1969.)

The Court decided students can’t “materially disrupt” the functioning of their school or “intrude upon the rights of others” – though what’s considered to meet those standards can depend on the situation.

The ACLU reported in 2018 that in the last five years, more than 100 public school districts and universities have hired companies to monitor the social media of their students. At least one district asked a surveillance company for alerts on any post mentioning “protest” or “walkout.” Another surveillance company offered to help public schools monitor “behavioral information” about specific individuals, including keeping tabs on their conversations with others.

(Vera Eidelman and Sarah Hinger. “Some Schools Need a Lesson on Students’ Free Speech Rights.” ACLU. September 18, 2018.)

Of course, students can be cruel and say terrible things online. However, I hope you can recall being a high school student yourself. I know I can, and I remember my level of maturity being somewhere between a chimpanzee and am amoeba.

Now, as an ex-teacher – one on the other side of the proverbial fence – I cringe at the vindictive words and actions of a juvenile like Brandi Levy. But, punishing her by suspending her right to cheer for a year because of her angry Snapchat message (which she sent upon learning near the end of the 2016–17 school year that she had not earned a place on the school's varsity cheerleading squad for the next season) seems extreme punishment to me.

I understand that Levy was suspended on the grounds that she had signed and was subject to a school district policy prohibiting such speech on social media. But, a year for four angrily tweeted “fucks”? Off-campus mind you. A student does have the right to be angry and upset with his or her school, doesn't she? So, is it the word itself that is so offensive to good old Mahanoy School District?

The Offense of the F-Word

Levy posted a “Snap” featuring a photo of her and a friend holding up their middle fingers with the text, “fuck school, fuck softball. fuck cheer, fuck everything” superimposed on the image. I agree with the coach that the Snap was “disrespectful to the coaches, the school and the other cheerleaders,” but what if the repeated obscenity had been “the hell with school, the hell with softball, etc.”?

What if the outburst had been in the classroom? Maybe that's different as to the horrible offense. But then there's Shatane Porter, a counselor at Ron Brown College Preparatory High School, talking about the F-word. And whether it's OK for students to say it in class and even in front of their teacher. Porter explains …

"This may be actually a sign of respect and trust that I can cuss in your class and say to you: 'I'm having a bad day. Fuck!'

“Then, he makes a distinction:

"Not 'F*** you!' Just, 'Fuck.' "

Charles Curtis, a school psychologist, explains the difference:

"So: 'Fuck this!' Moderate profanity. 'Fuck you, bitch!' Targeted profanity. See what I'm saying? When a student blows up in class, teachers should ask themselves: What is the student trying to say? And why is he saying it?”

(Ariana Figueroa. “Is The F-Word Ever OK In The Classroom?” NPR Ed. October 29, 2017.)

And, I want to know how are schools going to deal with online “fucking” acronyms? Like WTF – “What the fuck,” GAGF – “Go and get fucked,” or, my personal favorite, FYYFF – “Fuck you, you fucking fucker.” That last one is quite alliterative and particularly descriptive to the ears of a retired English teacher although some would certainly say obscene and needlessly redundant.

Would those abbreviations get you suspended from the cheer team for their intent or for their vulgar standing. FFS, I don't know. Does anyone remember FUBAR?

I know this is ridiculously petty, but abbreviating swearwords like this also allows people to use a form of language they might not feel so comfortable with were it spelled out, or in contexts where the explicit forms may be too risqué. Abbreviations make it easier to say whatever TF (the fuck) you want and still not be “really swearing” – unless you’re the GD (goddamn) New York Times.

Note: Ellen Seebacher writes to note this piece of extremely ostentatious taboo avoidance in the NYT Style section in Guy Trebay’s piece “Dear Winter Coat: Goodbye and Good Riddance”:

“At issue … is the question of when that hopeful day [the first day of spring weather] will arrive. It snowed on the first day of spring on the East Coast and remained so cold for the week thereafter that Olive & Bette’s boutique on Madison Avenue posted a placard outside with a popular and unprintable three-letter Internet acronym. 'After Tuesday even the calendar goes,' what the heck, or initials to that effect.”

Ellen was astonished that the paper treats WTF as an unprintable obscenity: the initialism inherits the taboo status of the word the “F” stands for.

(Stan Carey. “OMFG! Sweary Abbreviations FTFW!” Slate. April 27, 2015. “No WTF.” Arnold Zwicky's Blog.)

Believe it or not, there is actually a 2012 study about “The Use of Fuck: A Sociolinguistic Approach to the Usage of Fuck in the BNC and Blog Authorship Corpus” by graduate student Ryan Howe. Howe reported this seemingly “unmentionable” word is becoming more and more mainstream. He said …

“Although still widely considered taboo and marked as such in most dictionaries, the actual currency of fuck is steadily encroaching on areas of polite discourse” (Hughes 2006: 192). In fact, the Longman Dictionary of Contemporary English (1995) listed “fuck” in the top 3,000 most spoken words and an analysis by Kaye and Sapolsky (2005) showed that fuck is among the seventy-five words most often verbalized.

“As Hughes put it, 'Suffice it to say, fuck is everywhere' (2006: 13). One recent Internet search even revealed that fuck 'is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet.” (Vanatta 2004: 285). To quote Roy Blount, Jr. 'the f-word is a fact of life. It thrives.' (1999; xv).

(Ryan Howe. “The Use of Fuck: A Sociolinguistic Approach to the Usage of Fuck in the BNC and Blog Authorship Corpus.” Department of English Language and Literature Eastern Michigan University. July 15, 2012.)

If you really want to get into the findings, read the following “Note.” Consider the finding that the word is not being used in the traditional referential manner (fuck1), but is being used for emphasis (fuck2).

Note:

“Fuck is an unusual word in that it can be used as many different parts of speech. It can be used as a noun, adjective, adverb, or interjection. In fact, it can be used as practically any word in a particular sentence such as Fuck the fucking fuckers or The fucking fucker’s fucked, as spoken by a garage-owner passing judgment on an old car (Ljung 2011: 40). Also, it is one of the few words that can be utilized as an infix in words such as Absofuckinglutely and Infuckingcredible and even as an expletive slot filler inside non-clausal units such as noun phrases, as in Henry the fucking Eighth (Ljung 2011: 143).

“Fairman (2006) shows that fuck can reflect all kinds of emotions: dismay (Aw, fuck it), aggression (Don’t fuck with me), intensification (It’s fucking freezing), confusion (Where the fuck are we?), disinterest (I don’t give a fuck), dissatisfaction (I don’t like what the fuck is going on here), and suspicion (Who the fuck was that?).

“Fairman also explains that fuck can essentially be two distinct words: 'Fuck1' and 'Fuck2.' Fuck1 means literally 'to copulate' and is referential, encompassing other uses such as 'to cheat,' 'to exploit,' and 'to deceive.' Fuck2 does not have any intrinsic meaning at all; rather, it is merely a word that has offensive force (2006: 45). Fuck1 can be found in the examples for dismay, aggression, and disinterest above, while fuck2 is shown in intensification, confusion, dissatisfaction, and suspicion.”

Is Something Else Evident?

Let me share an inconsistency that I absolutely recall. When I taught high school, I saw cases where the school bended backwards to allow a male star athlete who had broken the team rules (or failed a school grading period) to play ball. Rules were broken and exceptions were conveniently made. Could it be the community would protest stiff penalties if Quarterback Biff Brawnyman was kept from playing in the state tournament football game next Friday night? “Who cares about the loss of a cheerleader anyhow?” (I heard in the background.)

David R. Wheeler of The Atlantic, writes there are numerous examples of schools punishing students for seemingly innocuous online activity. In 2012, after a Minnesota student, Riley Stratton, wrote a Facebook post saying a hall monitor was “mean” to her, she was forced to turn over her Facebook password to school administrators – in the presence of a sheriff’s deputy. The school made an out-of-court settlement with the student, who was represented by the ACLU.

Minnewaska Area Schools shelled out $70,000 in damages to Stratton, a 15-year-old who claimed in a lawsuit that she was hauled in front of school officials and a local police officer and forced to watch while the adults skimmed through her personal social media accounts.

"I was in tears," the girl from Glenwood recalled to The Star Tribune. "I was embarrassed when they made me give over my password."

Her mom, Sandra Stratton, was furious that she wasn't invited to sit in on the interrogation.

Attorney Wally Hilke, who took the case pro bono for the American Civil Liberties Union, said that the school's actions were a violation of Stratton's rights to free speech. According to Hilke …

"They punished her for doing exactly what kids have done for 100 years – complaining to her friends about teachers and administrators. She wasn't spreading lies or inciting them to engage in bad behavior, she was just expressing her personal feelings."

(Carol Kuruvilla. “Schools pay $70,000 to Minnesota student forced to give up Facebook password.” New York Daily News. March 27, 2014.)

In other recent cases, student banter that would have gone unnoticed in the pre-digital era has drawn swift punishment. In Kansas, a high school class president was suspended for a Twitter post making fun of his school’s football team. In Oregon, 20 students were suspended over a tweet claiming a female teacher flirted with her students. And, a student in Kansas was suspended for a tweet that made the principal “uncomfortable” (in the wording of the school’s disciplinary incident notification). It was a tweeted picture of

Principal Keith Jones with the caption “Public Enemy #1.”

What Is Truly Important

The hard-fought battle for student speech rights must not be eroded in the digital age. A school's use of technology that interferes with a student's private communication – especially messaging off the school campus – must not violate standards already set by the First Amendment and Tinker v. Des Moines.

If communication is not hate speech, words aimed to materially disrupt the functioning of the school, or communication meant to intrude upon the rights of others in school, the rights of a student must be upheld. Protecting a student's expression is vital to the development of a mature adult. Public schools embody a key goal of the First Amendment: to create an informed citizenry capable of self-governance and political debate

Would you like a government institution listening to your online chatter or rifling through your private videos and photo albums to regulate personal expression? Not I.

Most pressures for censorship come can emerge from anywhere across the religious, ideological, and political spectrum. The range of “controversial” topics appears limitless: religion, science, history, contemporary and classical literature, art, gender, sexuality, and so on. And, if the truth be known, many demands appear motivated by anxiety about changing social conditions and traditions – from feminism to the removal of prayer from schools, or the emergence of the gay rights movement.