Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states, the fact that it's even up for debate calls into question if the constitution still is the highest law of the land. I don't see the part where the rights only kick in once you are 18.
Although it's not strictly about age (kids who go to private/home school cannot have their speech regulated by the government in any special way), the fact is that the vast majority of kids in the US do go to public schools. These schools can regulate speech like employers can — but the difference is that no one is required to work for a specific employer for 12 years.
The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students.
BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?
"Still?" The answer used to be "of course schools can punish children for speech". The constitution does not have, or at least traditionally has not had, the relevance to random school affairs you think it has. If anything its influence is increasing.
America resolves it's social issues via separate entities that take a long time to muddle through and together. Very rarely do Americans make sweeping changes quickly, mostly because the system is designed to prevent that. In that it's a relatively young country it's unsurprising that it takes this long to resolve a lot of edge cases via real world incidents, and then make them case law, case law being the vast majority of Americas law. The process to get to the supreme court, and have that case settled, becoming case law, and therefore effectively the law of the land, can take a long time. The laws at the time of the uniting of the states are very broad and subject to evolving interpretation. This is all by design. It wasn't so long ago that the states of the Americas were not united, and some might argue they still have some way to go until they are, if they ever will be.
>Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states,
One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal:
While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.
> Its not clear to me why it is permissible for schools to ever punish children for nonviolent speech in the united states
The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?
She said bad things about the cheerleading team. The team decided to not have her as a cheerleader anymore. The school is a sideshow to all this. She wasn't punished by being put in detention or any other school related activity. Not sure how this is "punishing children".
The Constitution doesn't restrict local governments nearly as much as it does the federal government. And, of course, at least some schools are private and even less restricted because of that.
Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities.
The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.
Constitutional protections are never absolute. e.g. yelling fire in a crowded theater, the 2nd amendment and WMDs, or practicing a religion that requires human sacrifice. (Even animal sacrifice might be prohibited, I don't know.)
Dissent from Thomas
Justice Clarence Thomas dissented, writing that students like the former cheerleader "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs."
"For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here," Thomas wrote.
It's not like this girl made a threat against someone. She's a teenager - it's pretty much in their job description to say stupid things that they'll regret later in life so I respectfully disagree with Justice Thomas. Thankfully the rest of the justices did, too.
That being said there's a common trope coming from the loudest and most moral busybodies in academia that "Americans just want babysitters for their kids three quarters of the year". Sometimes I think it's projection.
While I strongly disagree with Thomas's decision, I disagree on the basis of several of the issues that he himself points out as unaddressed by the majority. Specifically, the widespread compulsory nature of schooling today vs in the 19th century, which Alito's concurring opinion outlines, as well as the limited-scope of snapchat "stories"; it is not the student's fault that speech intended to be transitory and limited in distribution was screenshotted and amplified. This case was much more like speech at a casual in-person meet-up outside of school than Thomas wants to admit. Furthermore, the nature of public schools (and even most private schools) today is far less serious than schools of the 19th century or before. Even if it weren't for the issue of compulsory schooling, schools have abdicated most of their traditional responsibility for moral instruction of students, and the SCOTUS is an inappropriate authority to try to undo that.
If you read the last paragraph of Thomas's dissent, it's clear he's more troubled with the laziness of the majority opinion than he is by the specific result. It reads like he wanted to really dig into the issues Alito raised in a concurring opinion, but didn't feel like he should because only Alito and Gorsuch concurred with that one, and debating those issues at length would be like bikeshedding. Maybe they were on the cusp of getting him to sign on, but they ran out of time and there were unresolved differences that led him to write the dissent.
Thomas's dissent should get everyone to think carefully about the scope of rights to discipline children in loco parentis in various circumstances. If you send your children to a friend's house, or with their friends' parents on some trip or to some event, you're granting those parents virtually unlimited ordinary disciplinary authority (subject to criminal and family law limitations). Voluntarily sending your kids to school could be seen (and, as Thomas points out, was historically seen) to create much the same dynamic.
His stance is less confusing if you actually read it in context, instead of carless (being very charitable) summation that completely misses his point. Ignorance or malice? Either is terrible. Here's the relevant part from the introduction of his dissent. Note he doesn't have issue with the outcome, but the extremely sloppy and haphazard way in which the decision was outlined.
I quote: "The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus?
Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome.
A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. "
https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
Page 34
If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN.
I'm not American and free speech isn't an area I'm clued up on, but following on from that judge's words.. are there situations where more privileged/famous people have less freedom of speech (in a quasi-legal sense, rather than a 'social consequences' one) than others in the US?
Speech reasonably interpreted as bearing the school’s imprimatur falls outside the scope of this opinion so these comments would need to be made personally and not "as the school team". The opinion still allows students consent to additional restrictions on their speech. Requiring such consent to attend regular school isn't allowed because students are required to attend school. But requiring such consent to participate in extracurricular activities like sports teams would still be allowed.
So in your example the school would simply need to require consent from students to have their speech restricted before they can participate in extracurricular programs like the football team.
Ironic, since Thomas is the person who didn't mind having a negative effect on the Equal Employment Opportunity Commission and the Supreme Court with his behavior toward women and atheists.
For those interested, the Free Law Project maintains podcasts & RSS feeds of oral arguments in front of the both the Supreme Court and all the district appellate courts. They are a great listen. I especially enjoy going into them without any prior knowledge of the cases.
What happens if a rival sports team uses bigoted slurs to degrade a rival team on social media? Could the players still be suspended from games? Or would the coach and league be powerless to create an atmosphere of good sportsmanship? I rarely agree with Justice Thomas, but he was good to dissent with a more targeted opinion.
I think this was the right move. Unless you're threatening violence, harm, self harm, or engaging in bullying, the schools have no business trying to regulate student speech off campus. I never saw this as anything more than a power move by the schools.
on a side note, it is becoming a rare occasion that the ACLU is involved in a free speech issue and arguing for free speech, and they are using it to sell merch.
Because it's a public school. It would not apply to private schools or private employers.
Also note that this is a narrow ruling; the supreme court is not intending to set new precedent the way Tinker vs. Des Moines did. They just said this particular student's particular speech in this particular context was protected, not all speech by all students. This case won't be relevant to schools banning hate speech or bullying on social media, for instance. Nor would it have any consequences for public employers.
There is a larger question here. Tinker, the existing precedent, was established long before social media. There will have to be a reckoning, the court will need to decide what speech on social media is protected and what isn't. Speech on social media is (by virtue of this decision) more protected than on campus speech, but less protected than speech by an adult who's not a student at the school. There's a line in there somewhere, and it's the court's duty to draw it. They did not draw that line today; they just said that the line is over there somewhere and saying "fuck" on social media didn't cross it.
I hope that this ruling applies to UT Knoxville too.
They kicked out a student and cheerleader based on false accusation of her using "a derogatory racist slur" in a leaked private conversation. (She said "nigga".)
[+] [-] willcipriano|4 years ago|reply
[+] [-] gnicholas|4 years ago|reply
The Court was trying to find a balance that allows schools to prevent kids from going around spewing expletives all day long without consequence, while at the same time not treading too heavily on the legitimate free speech rights of students.
BTW, what do you mean when you say "nonviolent speech"? Are you referring to calls to violence, or the more recent concept (not recognized by the courts) that certain speech is itself violence?
[+] [-] andrewflnr|4 years ago|reply
[+] [-] neom|4 years ago|reply
[+] [-] jasode|4 years ago|reply
One principle used to restrict free speech on school campus is about being "disruptive" to the class. E.g. Public schools banned kids from wearing the Confederate flag on shirts because they were "disruptive". In some cases, the free speech advocates fought the rule and yet the ban was upheld by courts even on appeal:
https://www.google.com/search?q=confederate+shirt+banned+pub...
[+] [-] kube-system|4 years ago|reply
While students do absolutely have rights, schools are also tasked with caring with kids (especially during the school day). It's typically at the intersection of these rights and responsibilities where we see these cases make it to SCOTUS.
[+] [-] dharmab|4 years ago|reply
IANAL and would butcher the explanation, so check out the Decision section.
[+] [-] helen___keller|4 years ago|reply
The most obvious counterexample would be speech that disrupts education. Why even have schools if one student can choose to talk and yell and disrupt class and not be punished for it?
[+] [-] belltaco|4 years ago|reply
[+] [-] nonameiguess|4 years ago|reply
Even here, I'm surprised by the free speech advocacy of the justices. It doesn't seem consistent with plenty of other rules that are allowed to stand. This school could have punished the same cheerleader for the same words if she'd said them in class or even at practice. As far as I can tell, she was only protected because the school can't punish her for what she says totally outside of school property and activities.
The wording of the decision makes it sound like you're free to speak profanely anywhere and anytime you want, but schools clearly punish people for profanity all the time and that's never been stopped.
[+] [-] lisper|4 years ago|reply
[+] [-] blakesterz|4 years ago|reply
[+] [-] lp0_on_fire|4 years ago|reply
That being said there's a common trope coming from the loudest and most moral busybodies in academia that "Americans just want babysitters for their kids three quarters of the year". Sometimes I think it's projection.
[+] [-] harshreality|4 years ago|reply
If you read the last paragraph of Thomas's dissent, it's clear he's more troubled with the laziness of the majority opinion than he is by the specific result. It reads like he wanted to really dig into the issues Alito raised in a concurring opinion, but didn't feel like he should because only Alito and Gorsuch concurred with that one, and debating those issues at length would be like bikeshedding. Maybe they were on the cusp of getting him to sign on, but they ran out of time and there were unresolved differences that led him to write the dissent.
Thomas's dissent should get everyone to think carefully about the scope of rights to discipline children in loco parentis in various circumstances. If you send your children to a friend's house, or with their friends' parents on some trip or to some event, you're granting those parents virtually unlimited ordinary disciplinary authority (subject to criminal and family law limitations). Voluntarily sending your kids to school could be seen (and, as Thomas points out, was historically seen) to create much the same dynamic.
[+] [-] EricE|4 years ago|reply
I quote: "The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus? Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. " https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf Page 34
If you actually read his dissent, instead of a hack summary, you would see he thinks they didn't go far enough in constraining the schools. Quite the opposite of what is implied by CNN.
[+] [-] petercooper|4 years ago|reply
[+] [-] voxic11|4 years ago|reply
So in your example the school would simply need to require consent from students to have their speech restricted before they can participate in extracurricular programs like the football team.
[+] [-] lupire|4 years ago|reply
[+] [-] ortusdux|4 years ago|reply
[+] [-] neom|4 years ago|reply
[+] [-] ortusdux|4 years ago|reply
https://www.courtlistener.com/podcasts/
[+] [-] remarkEon|4 years ago|reply
https://www.oyez.org/cases/2020/20-255
[+] [-] protomyth|4 years ago|reply
They have excellent coverage and commentary
[+] [-] jdavis703|4 years ago|reply
[+] [-] Simulacra|4 years ago|reply
[+] [-] unknown|4 years ago|reply
[deleted]
[+] [-] comodore_|4 years ago|reply
[+] [-] lp0_on_fire|4 years ago|reply
[+] [-] cm2187|4 years ago|reply
[+] [-] nwallin|4 years ago|reply
Also note that this is a narrow ruling; the supreme court is not intending to set new precedent the way Tinker vs. Des Moines did. They just said this particular student's particular speech in this particular context was protected, not all speech by all students. This case won't be relevant to schools banning hate speech or bullying on social media, for instance. Nor would it have any consequences for public employers.
There is a larger question here. Tinker, the existing precedent, was established long before social media. There will have to be a reckoning, the court will need to decide what speech on social media is protected and what isn't. Speech on social media is (by virtue of this decision) more protected than on campus speech, but less protected than speech by an adult who's not a student at the school. There's a line in there somewhere, and it's the court's duty to draw it. They did not draw that line today; they just said that the line is over there somewhere and saying "fuck" on social media didn't cross it.
[+] [-] lupire|4 years ago|reply
They kicked out a student and cheerleader based on false accusation of her using "a derogatory racist slur" in a leaked private conversation. (She said "nigga".)
https://www.wvlt.tv/content/news/Incoming-UT-cheerleader-use...
[+] [-] cool_dude85|4 years ago|reply