Next month, the Supreme Court will hear oral arguments in the case of “B.L.,” who was punished by Pennsylvania’s Mahanoy Area School District in 2017 for posting on Snapchat after learning that she had not made the school’s varsity cheerleading team: “F— school f— softball f— cheer f— everything.” The message reached her school’s cheerleading coaches, who removed her from the JV squad for the season. B.L. sued the district and won — but then they appealed.
While the Biden administration has backed the school district, staunch defenders of the First Amendment’s speech protections worry that a court win for the district could have a chilling effect across student speech. But even from that point of agreement, there’s dispute as to whether the courts should be counted on to defend student speech.
The Inquirer turned to two education professors at the University of Pennsylvania to debate: Can the courts be a reliable ally in protecting student speech?
Yes: Schools didn’t protect free speech, so the court had to step up.
By Jonathan Zimmerman
If officials in northeast Pennsylvania get their way, students across America will risk penalties for anything they post online. And that’s bad news for all of us.
The student at the center of Mahanoy Area School District v. B.L. got in trouble because a friend took a screenshot of her Snapchat post (which used the f-word four times) and showed it to the friend’s mother, a cheerleading coach. The school suspended B.L. from cheerleading for a year, claiming the punishment was necessary to “avoid chaos” and uphold a “teamlike environment.”
B.L. sued the school district and won a sweeping victory in the United States Court of Appeals for the Third Circuit in Philadelphia, which ruled that officials could not punish students for speech occurring outside of school. The Mahanoy district appealed the case to the Supreme Court, backed by the American Federation of Teachers, the National School Boards Association, and several other large educational organizations.
If B.L. prevails, they worry, they won’t be able to penalize students for harassing or threatening posts. Nor will they have the right to regulate student behavior in remote classes, which have become ubiquitous during the pandemic.
But we already have numerous state laws prohibiting cyberbullying and other kinds of online harassment. And if B.L. had made her expletive-laced remark during a remote class, of course the school should have been allowed to discipline her.
She actually typed the remark at a store on a Saturday, when her school wasn’t even in session. And she sent it to her 250-odd Snapchat friends, not to anyone else. If the Supreme Court rules against B.L., schools will be able to regulate everything students say. It won’t matter where they are or who hears them.
That should send shivers down the spine of every American, no matter their politics. This isn’t a “liberal” or “conservative” issue, or at least it shouldn’t be. It’s a question of freedom, which affects all of us.
In 2018, for example, school officials in Lacey, N.J., suspended two high school students for posting photos of their legally owned guns at a shooting range. “If there’s ever a zombie apocalypse, you know where to go,” one of their captions read.
Calling all National Rifle Association members! If the students in Lacey had posted their intent to harm someone, of course it would have been fully appropriate to discipline them. But their only “threat” was to zombies, which they obviously made as a joke.
The dead-serious threat here is to the rights of our students, and also of their parents. If B.L.’s suspension is upheld, everything that your kid says outside of school — even under your own roof — will be subject to school regulation and penalty. It won’t matter if you agree or not.
“Freedom is simply too important a principle to be left to the whim of the principal.”
“Where did we give up that right to be a parent?” a citizen in Lacey asked a packed 2018 school board meeting after the two students were suspended. The answer is simple: We didn’t and we shouldn’t, any more than we should allow schools to muzzle our children.
We can’t teach young people to be democratic citizens if we don’t let them speak their minds, about guns and everything else. And if schools don’t have policies to protect that right, the courts need to step in. Freedom is simply too important a principle to be left to the whim of the principal.
Jonathan Zimmerman teaches education and history at the University of Pennsylvania. He is the coauthor, with cartoonist Signe Wilkinson, of “Free Speech and Why You Should Give a Damn,” which will be released on Thursday at a virtual event sponsored by the Free Library of Philadelphia.
No: The dispute going to court means that schools have dropped the ball.
By Sigal Ben-Porath
Courts at all levels routinely refuse to see young people as citizens and often neglect to protect children’s speech. To sustain American democracy, our best course of action is to rely less on the courts and to start expecting schools, and supporting teachers, to do the crucial work of preparing young people for democracy.
Many students recognize the necessity of being prepared for their civic roles and have sued when schools failed to address their need not just to learn about American democracy, but to practice the skills required to participate. The courts have not supported their efforts. The Supreme Court, for example, ruled in 2007 that a school could punish a student for a banner that read “BONG HITS 4 JESUS.” At the state level, a Michigan court case in which students demanded literacy as a protected civic right went nowhere, as did a similar Rhode Island case claiming a constitutional right to civics education.
No one is born with the skills and knowledge to be an engaged democratic citizen. As courts constrict speech rights and treat young people as too young to have their own views, schools risk taking up this vision. Students are regularly treated by judges, policymakers, and administrators as vessels to advance one agenda or another, or as mere future workers and taxpayers, charged simply with contributing to the economy. This is a fine goal, but a society is more than an economy. American democracy is broader than the sum of its businesses and employees.
Students need to learn how to become effective members of this complex, and arguably eroding, democratic society. They need to learn to speak their minds and connect across divides. And they need to be allowed to make mistakes and learn the consequences of their words. For this vision to be achieved, schools and courts must treat students as people who are worthy of their constitutional rights, and deserving of the opportunity to practice them.
Schools have a key role in protecting student speech and in supporting students as they develop their voices. Democracy is the only form of government in which citizens are free to make up their own minds. The ability to do so does not turn on, like a light switch, at age 18. Schools can enable the development of democratic habits by ensuring that students can think and speak freely, understand and consider the impact of their words, and engage in conversation with diverse groups.
“Schools can enable the development of democratic habits by ensuring that students can think and speak freely, understand and consider the impact of their words, and engage in conversation with diverse groups.”
A common concern raised about “kids these days” is that they do not support freedom of speech as much as they should, or as much as past generations. Some surveys have indeed found today’s young people more skeptical of free speech and expressing a preference for more limitations, especially when words and statements harm members of marginalized social groups. These beliefs highlight the value of publicly discussing the boundaries of speech, and the protection the First Amendment provides to marginalized groups, in trusted school communities. Unfortunately, schools too often do the opposite, like censoring student newspapers. The courts, in turn, allow them to limit “lewd” and “improper” speech.
While the courts might help determine when it is appropriate to punish a student for hurtful, racist, or otherwise inappropriate speech, the work goes well beyond sketching those boundaries. Schools should bear the primary responsibility for that work — not punish students for constitutionally protected speech and cut off essential dialogue.
Sigal Ben-Porath is a professor of education at the University of Pennsylvania. Currently a fellow at Harvard’s Center for Ethics, she joined the “Brief of Law and Education Professors as Amici Curiae” supporting B.L. submitted to the Supreme Court in this case.