Amicus Brief in the Student Speech Case
Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and I just filed an amicus brief in Mahanoy Area School Dist. v. B.L., the Supreme Court’s new student speech case. Many thanks to my colleague Prof. Stuart Banner, who drafted the brief for us, and to his students Tom Callahan and Molly Moore. (I also signed the brief as counsel, together with Stuart.) In case you folks are interested, here is our argument:
Summary of Argument
In Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969), this Court held that “[i]t can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet petitioner argues that students shed much of their freedom of speech even outside the schoolhouse gate, so long as their off-campus speech is reasonably expected to reach campus. This proposal would allow schools to punish students for an enormous range of speech that expresses unpopular or controversial views.
Schools do have legitimate concerns about some off-campus speech, but it is possible to respond to these concerns without giving schools the authority to censor all off-campus speech. Rather, the Court should identify the circumstances under which schools need more control over student speech than the First Amendment would normally allow—rare circumstances, when it comes to speech outside a school-organized activity—and apply the Tinker standard only in those circumstances. In other contexts, particularly where students express unpopular or controversial views, students should have the same freedom of speech as adults.
[I.] Student speech outside school activities should generally be fully constitutionally protected.
In Tinker, the Court recognized that the school’s authority over student speech generally arises only at the schoolhouse gate. 393 U.S. at 506 (identifying “the schoolhouse gate” as the relevant boundary), 508 (referring to speech “in class, in the lunchroom, or on the campus”), 512-13 (referring to speech “in the cafeteria, or on the playing field, or on the campus during the authorized hours”). The Court restated this distinction between on-campus and off-campus speech more explicitly in subsequent cases. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”) (citation and internal quotation marks omitted); id. at 271 (describing Tinker as governing “expression that happens to occur on the school premises”); Morse v. Frederick, 551 U.S. 393, 405 (2007) (“Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected.”) (referring to Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)).
Technology has of course made the schoolhouse gate into a virtual term as well as a physical one. The “school context” to which Morse referred has long included various online activities as well as off-campus but school-sponsored physical gatherings. Students use the Internet to download and upload assignments; they communicate with their teachers by email and on social media; and they collaborate on school activities with classmates who might be miles away. During the pandemic, the classroom itself has become a virtual space, in which neither the teacher nor any of the students is on school grounds.
But while the school must therefore control virtual classrooms as it does physical ones, it does not follow that it may control online—or offline—speech outside the “school context,” even when off-campus speech has effects on campus. This is so for two reasons.
First, all online speech by students can be expected to reach the school’s campus. Students take their phones and computers everywhere they go, including to school. So do their teachers. Anything a student posts on social media—a preference for one political candidate over another, a statement of religious belief or nonbelief, praise or criticism of a teacher or a fellow student—is likely to be read by someone on campus. Applying the Tinker standard to all online speech would be an enormous expansion of schools’ power to censor the speech of their students. If students do not shed their freedom of speech “at the schoolhouse gate,” Tinker, 393 U.S. at 506, they certainly should not shed their freedom of speech every time they speak online.
Second, when students express unpopular or controversial views off campus, much of their speech deserves full First Amendment protection even if it causes disruption on campus. For example:
- Student A writes a letter to the editor of the local newspaper in which he argues that the town’s police officers engage in unjustifiable violence against Black suspects. The newspaper posts the letter on its website, where it is read by other students, including some whose parents are police officers. At school the next day, figh
Article from Latest – Reason.com