The U.S. Supreme Court this week heard oral arguments In a case that has grave implications for pro-life speech.
The arguments focused on whether schools can discipline students for off campus speech. After a Pennsylvania high school student posted a negative comment about her cheerleading experience while at a local mall, the school penalized the student by cutting her from the squad. The parents sued, alleging their daughter’s First Amendment rights had been violated. Both the trial court and the Third Circuit Court of Appeals held that the school had no constitutional authority to punish the student for her off campus remarks.
So why does Life Legal care about a cheerleader’s social media post?
If the Supreme Court determines that a school can discipline a student for an off-handed comment she made on a weekend outside of school, then schools will be able to regulate all kinds of speech and activities, including pro-life speech.
The school district in this case relied on the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, which held that a school could not prohibit a student’s on-campus speech unless it “materially and substantially disrupt[s] the work and discipline of the school.” The Tinker Court was silent on the question of off-campus speech. Nevertheless, the school district argues that Tinker applies since the cheerleader’s post was “disruptive” as it upset her coach and other students.
According to the school district’s reasoning, a school administrator could prohibit students from engaging in pro-life activities outside a local abortion clinic if that activity bothered other students. Schools could even prevent non-students from distributing pro-life literature on public sidewalks outside high schools if some students – or, as is more common, some school administrators – complained.
Life Legal filed a “friend of the Court” or amicus brief in the case noting that our clients frequently encounter hostile school administrators who eagerly brand off-campus pro-life speech “disruptive” precisely because students are interested and may continue their discussions about the content later at school.
The Third Circuit Court of Appeals clearly defined off campus speech as that which occurs outside school grounds during non-school hours. But Chief Justice John Roberts seemed to be inclined to blur the line between on and off campus speech, suggesting that a text or post made off campus on a weekend, but read in the school cafeteria, may be construed as on campus speech.
Deputy U.S. Solicitor General Malcolm Stewart, representing the Biden Administration and arguing in favor of the school district, went even further, saying online speech is effectively on campus speech and is therefore subject to regulation – even if students post from their homes during off school hours. Stewart later said if a “pattern of tension” were established as a result of a student’s off campus speech, the school would be justified in punishing the student.
I find myself in the unusual position of agreeing with Justice Stephen Breyer, who said that this was clearly off campus speech and therefore “primarily the domain of the parents.”
Allowing schools to punish speech because it may upset some students or faculty creates a highly subjective standard that will erode students’ First Amendment rights and could result in the scouring of student social media accounts for content that might disturb others. It is not hard to imagine how this unwarranted – and unconstitutional – expansion of the Court’s ruling in Tinker would lead to censorship of pro-life speech.
The Court will issue a ruling before the end of June.