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OK - the SCOTUS is in session for Mahonoy Area Schools v B.L.
This is the case about whether a school can kick a cheerleader off the squad for off-campus speech on social media.
This is the case about whether a school can kick a cheerleader off the squad for off-campus speech on social media.
I missed the name of the advocate for the school district, but they're doing a good job summarizing the arguments.
The argument is focused mostly, I think, on the chaos that would be caused by a lack of regulation.
The argument is focused mostly, I think, on the chaos that would be caused by a lack of regulation.
CJ Roberts, I think, asking about political speech about schools. How does that get handled?
Response is that it's not connected to the school. CJ is refining the question.
Response is that it's not connected to the school. CJ is refining the question.
Thomas (who is pretty skeptical that the 1A applies in schools as a general matter) is asking about in class versus out of class.
The argument seems to be focused on whether Tinker applies to this kind of speech.
The argument seems to be focused on whether Tinker applies to this kind of speech.
Thomas: aren't we at a point where if it's on social media, where you are when you post it doesn't matter.
School district agreeing that there's not a difference and arguing that all social media speech from students should be eligible for school discipline.
School district agreeing that there's not a difference and arguing that all social media speech from students should be eligible for school discipline.
Thomas:
But what about political speech? Can't that be as disruptive as speech about a teacher?
(His question was VERY good). And the advocate struggled with it.
But what about political speech? Can't that be as disruptive as speech about a teacher?
(His question was VERY good). And the advocate struggled with it.
Breyer:
"I've READ Tinker." You can't punish things unless there is actually a material and substantial disruption. How did this? It's just swear words.
"I've READ Tinker." You can't punish things unless there is actually a material and substantial disruption. How did this? It's just swear words.
I'm leaning toward something I think @BoozyBadger noted earlier - the fight here might be about the question of whether Tinker applies, but the school loses on the facts either way.
Breyer seems to be arguing that Tinker *should* apply because it LIMITS what can be punished and provides protection to students.
I should mention that @marybtinker is on Twitter and a great follow for these issues. (Yes, *that* Tinker.)
Alito:
Your argument is that it matters when speech targets the school. I have no idea what that means.
Your argument is that it matters when speech targets the school. I have no idea what that means.
Still Alito:
If schools are going to have authority out of school, I need a clear rule. Give me one.
School:
Talking about a rule for bullying.
Alito:
Apparently concerned that a test would allow schools to punish someone for misgendering. (Yes, really.)
If schools are going to have authority out of school, I need a clear rule. Give me one.
School:
Talking about a rule for bullying.
Alito:
Apparently concerned that a test would allow schools to punish someone for misgendering. (Yes, really.)
Sotomayor:
The problem I have with Tinker is that I'm not sure it's any clearer a rule than the ones you are suggesting. Can you punish for cursing at home?
School:
No
Sotomayor:
On the way to school?
School:
No
Sotomayor:
Why internet?
The problem I have with Tinker is that I'm not sure it's any clearer a rule than the ones you are suggesting. Can you punish for cursing at home?
School:
No
Sotomayor:
On the way to school?
School:
No
Sotomayor:
Why internet?
School now arguing that cheerleaders agree to extra scrutiny.
Kagan:
Asking about prior cases involving dress codes - which is closer to the Tinker facts but not these facts.
Asking about prior cases involving dress codes - which is closer to the Tinker facts but not these facts.
Kagan still up:
"Should we tell courts that Tinker is it, but you have to allow religious and political speech no matter how disruptive it is?"
"Even if it's Confederate flags that are going to cause a riot?"
"Should we tell courts that Tinker is it, but you have to allow religious and political speech no matter how disruptive it is?"
"Even if it's Confederate flags that are going to cause a riot?"
Gorsuch:
"Does it matter that this was an extracurricular?"
Best argument for school, honestly.
"Does it matter that this was an extracurricular?"
Best argument for school, honestly.
Kavanaugh:
"The context that it's a team is helpful for you."
"But as a judge and parent, it seems like an overreaction by the coach."
"The context that it's a team is helpful for you."
"But as a judge and parent, it seems like an overreaction by the coach."
Kavanaugh:
This is a student with competitive fire. This is a thing that means a lot to athletes. So maybe what bothers me is that it didn't seem like the punishment was tailored to the offense.
(ME: WTF???)
This is a student with competitive fire. This is a thing that means a lot to athletes. So maybe what bothers me is that it didn't seem like the punishment was tailored to the offense.
(ME: WTF???)
Kavanaugh:
How does that fit into the 1A analysis?
School:
I don't think it does. (ME: I agree.)
How does that fit into the 1A analysis?
School:
I don't think it does. (ME: I agree.)
School struggling with what seems, in fairness, to be a pretty frigging bonkers line of questions from Kavanaugh.
Kavanaugh:
"So you want us to say Tinker applies everywhere and remand?"
School:
Yes.
"So you want us to say Tinker applies everywhere and remand?"
School:
Yes.
ACB:
Nothing in Tinker says it applies outside school environment. You may have good policy arguments, but I don't see a lot of doctrinal support.
What's your best authority doctrinally?
Nothing in Tinker says it applies outside school environment. You may have good policy arguments, but I don't see a lot of doctrinal support.
What's your best authority doctrinally?
School:
The hundred years before...
ACB:
What about in OUR precedent.
The hundred years before...
ACB:
What about in OUR precedent.
ACB:
You may be seeing a concern about schools overreaching if we expand this beyond the school.
(OK, she just made Kavanaugh's question a bit more comprehensible.)
You may be seeing a concern about schools overreaching if we expand this beyond the school.
(OK, she just made Kavanaugh's question a bit more comprehensible.)
Wrap-up:
We want a clear line for what can/can't be done, and applying Tinker outside schools is your best bet for that.
(Not the worst argument.)
We want a clear line for what can/can't be done, and applying Tinker outside schools is your best bet for that.
(Not the worst argument.)
Stewart(sp?) up, I think for USA, which is supporting the school district.
CJ:
How do you parse when speech is directed at a school? Most kids' friends are also classmates.
USA: First part of our test is whether it's school speech. If yes, school should have the chance to show that it could cause disruption.
How do you parse when speech is directed at a school? Most kids' friends are also classmates.
USA: First part of our test is whether it's school speech. If yes, school should have the chance to show that it could cause disruption.
CJ:
Giving same referendum question to this guy. Where's the line?
USA:
The part about Ms Jones being a terrible teacher might take it in to the test, but wouldn't be disruptive on the facts.
Giving same referendum question to this guy. Where's the line?
USA:
The part about Ms Jones being a terrible teacher might take it in to the test, but wouldn't be disruptive on the facts.
Thomas:
Should we treat team rules differently from the school ones?
USA:
Absolutely yes thank you.
This punishment was limited to the team issues, so not really unreasonable to toss the kid for a year for saying f-- cheer.
Should we treat team rules differently from the school ones?
USA:
Absolutely yes thank you.
This punishment was limited to the team issues, so not really unreasonable to toss the kid for a year for saying f-- cheer.
Thomas:
When we talk about material disruption, can you localize that to the team? So if a team member disrupts the team you can discipline even if it wouldn't disrupt school?
USA:
Absolutely. Can't run teams otherwise.
When we talk about material disruption, can you localize that to the team? So if a team member disrupts the team you can discipline even if it wouldn't disrupt school?
USA:
Absolutely. Can't run teams otherwise.
Breyer:
I can't write a treatise on the 1A in this case. Everyone seems to want a rule, and that seems to be to make the rule that off-campus is fine.
Hinting that he's OK with a rule that says you can moderate off-campus, but there's got to be a strong strong caution involved.
I can't write a treatise on the 1A in this case. Everyone seems to want a rule, and that seems to be to make the rule that off-campus is fine.
Hinting that he's OK with a rule that says you can moderate off-campus, but there's got to be a strong strong caution involved.
(I suspect the ruling in this one is going to have a lot of the justices writing.)
Alito:
What about out of school political speech that could be disruptive because it's such an incendiary issue?
USA:
No. Not where there's no inherent connection to the school.
Alito:
So the speech has to target the school? Does speech target whenever it refers to student etc
What about out of school political speech that could be disruptive because it's such an incendiary issue?
USA:
No. Not where there's no inherent connection to the school.
Alito:
So the speech has to target the school? Does speech target whenever it refers to student etc
USA:
Not anytime, no.
Alito:
You're proposing a really nebulous line. Can you give me something firmer?
USA:
Need to employ concepts like proximate cause. Framework will apply differently.
Not anytime, no.
Alito:
You're proposing a really nebulous line. Can you give me something firmer?
USA:
Need to employ concepts like proximate cause. Framework will apply differently.
Sotomayor:
Your test seems to focus on sports teams. But one could say that about any extracurricular activity - science labs, debate, etc. There's no afterschool activity where the spirit couldn't be perceived as being affected by whatever is unpopular.
Your test seems to focus on sports teams. But one could say that about any extracurricular activity - science labs, debate, etc. There's no afterschool activity where the spirit couldn't be perceived as being affected by whatever is unpopular.
Sotomayor:
So when can school ban BLM or Confederate flag shirts?
USA:
Never.
Sotomayor:
Why?
USA:
Ummmmm....ummmm....
So when can school ban BLM or Confederate flag shirts?
USA:
Never.
Sotomayor:
Why?
USA:
Ummmmm....ummmm....
USA:
It might be disruptive but it doesn't strike at what the team is about.
It might be disruptive but it doesn't strike at what the team is about.
Kagan:
Is the speech in this case school speech?
USA:
Close to line.
Kagan:
Which side?
USA:
School
Kagan:
So that's putting just about everything on the school side.
Is the speech in this case school speech?
USA:
Close to line.
Kagan:
Which side?
USA:
School
Kagan:
So that's putting just about everything on the school side.
Kagan hypos coming:
Email homework answers
School
Email skip school for skip day
School
Email that students should skip unless more authors of color in English
School
Email that students should skip because school homophobic
School
Tweet that skip because school sucks
School
Email homework answers
School
Email skip school for skip day
School
Email that students should skip unless more authors of color in English
School
Email that students should skip because school homophobic
School
Tweet that skip because school sucks
School
Gorsuch:
Is there anything petitioner argued that you disagree with? Any daylight between you and them?
USA:
Not really.
Is there anything petitioner argued that you disagree with? Any daylight between you and them?
USA:
Not really.
Gorsuch:
Can you address other side's argument that increased avenues for expression is leading to more school regulation and decreasing the role of the parent?
USA:
You don't have to use the internet. No requirement to communicate everything online.
Can you address other side's argument that increased avenues for expression is leading to more school regulation and decreasing the role of the parent?
USA:
You don't have to use the internet. No requirement to communicate everything online.
USA:
Also, more potential for off-campus speech to interfere with on-campus.
Also, more potential for off-campus speech to interfere with on-campus.
Kavanaugh:
I share Breyer's instinct that we can't/shouldn't write a treatise here. So what if we just said "1A does not categorically prohibit discipline for off-campus speech?"
I share Breyer's instinct that we can't/shouldn't write a treatise here. So what if we just said "1A does not categorically prohibit discipline for off-campus speech?"
USA:
That would be enough. It might be better to have a discussion about how location of speech might not affect whether off-campus speech can be disruptive.
Kavanaugh:
What about proportionality? How does it factor into 1A analysis?
USA:
It doesn't much.
That would be enough. It might be better to have a discussion about how location of speech might not affect whether off-campus speech can be disruptive.
Kavanaugh:
What about proportionality? How does it factor into 1A analysis?
USA:
It doesn't much.
