“Gimme an F!” Supreme Court Mulls the Case of the Cursing CheerleaderRoundup
tags: legal history, Supreme Court, First Amendment, free speech, Tinker v. Des Moines, High Schools
According to lawyers for the Mahanoy (PA) Area School District, this is what awaits America if the district loses a case pending before the Supreme Court:
A swollen-eyed student breaks down during English class; her teacher discovers that her classmates are calling her worthless on social media and urging her to kill herself. The science teacher goes on leave after his students create a fake email account that impersonates him and spews invective about other students, prompting outrage from parents…Older students follow a disabled student home and describe sexual acts in such graphic terms that he cannot face returning to school.
This teenage wasteland will inexorably follow a decision that the district lacked the power to punish a high school sophomore who, while hanging out with friends at the Cocoa Hut a mile from campus, uttered into cyberspace the following terrifying words: “Fuck school fuck softball fuck cheer fuck everything.”
The student, known here as B.L., also added a sarcastic comment decrying the injustice that she, a sophomore, had been relegated to the junior varsity cheer squad, while a freshman girl had gone straight to varsity.
These comments were, shall we say, inelegantly phrased. But did Mahanoy Area High totter at this disrespect? Do these two words rise to the level of bullying, fake email harassment, or sexually harassing a disabled student? Do they threaten to disrupt the education of the school’s roughly 300 students?
Why, yes. Yes, they do, according to Lisa Blatt, a high profile Supreme Court litigator, who argued for the school authorities before the Supreme Court last week: “[S]he targeted her coaches, the sport, and another teammate’s ability to play, and the coach recently forecasted someone who berates with a profane gesture and word, all three of those things is not somebody you’d want at the bottom of the pyramid.”
In other words, freedom of speech means you can’t cry “unfair” in a crowded human pyramid.
B.L.’s profanity was posted on Snapchat, a social-media application that shares photographs with a user’s “friends,” and then deletes them 24 hours later. Before it disappeared, though, one of the recipients took a screenshot and showed it around school. Several members of the cheer team went to Nicole Luchetta-Rump, co-advisor of the squad, who recalled that “they were visibly upset, like, ‘can’t you do anything, what are you going to do, have you seen it.’”
Luchetta-Rump, with the backing of school authorities, did what school officials often do when faced with saucy speech by a teen: They punished her. B.L. was suspended from the cheer squad for a year.
The case turns on the meaning of a venerable Supreme Court precedent, Tinker v. Des Moines Independent Community School District, decided in 1969. In Tinker, three students at Iowa public schools wore black armbands to protest against U.S. conduct of the Vietnam War. Warned of the protest, school officials had hastily adopted a rule that forbade armbands. When the students wore their armbands to school anyway, they were suspended.
The court held that punishment a violation of the First Amendment. Justice Abe Fortas wrote for a majority what has become a famous passage:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech at the schoolhouse gate … In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.
Schools certainly had the power, and the obligation, to maintain school discipline, the majority said. They can punish students for their speech, but only if permitting it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
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