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  • Reverend James Squire

Recent Free Speech Verdict by the Supreme Court

When I took classes at the Theological Union at the University of California at Berkeley, I had the opportunity to go to the spot at one of the entrances to campus where the Free Speech Movement in the 60(s) started. There is a metal plate in the ground about the size of a man hole cover where people can stand on that location and say whatever they wanted.

I think that the most recent case regarding free speech offers both clarity and confusion at the same time. The information contained in this blog was gleaned from an article in the Inquirer, “At high court, Pa. teen wins free-speech” by Jeremy Roebuck.

In an 8-1 decision, the justices concluded that Brandi Levy’s School District should not have suspended her after a tirade on Snapchat where she used the F word with a foulmouthed criticism of her school, her cheerleading squad that she didn’t make, and everything else including a raised middle finger for the viewers. Her parents sued!

If you have ever been in the school business such as myself for 38 years, you will pay close attention to this decision. Punishment of students for their actions is filled with controversy and debate in schools. What begins the lack of clarity to this decision is that it seems directed just to public schools and not independent or parochial schools. We know that legally independent schools or parochial schools can’t totally ignore this decision at their own risk as a precedent is always a precedent for something in the future.

What isn’t covered in this case is a clearer distinction between public and private domain. Let’s take a look at another issue such as alcohol use by students off campus. Should they be subject to school rules? When our school did a poll of parents regarding this issue the parents were divided, half wanted the school to pay attention to this and half said that it was none of our business what a student does in the “privacy” of their own home.

We had a contract with our parents and students which clearly stated that the parents and students were both subject to our rules such as a parent who served alcohol to underage students would be sanctioned along with the students. Essentially, we said that a student “represents” our school 7/24. This is true in the service academies as well. The difference between public and independent schools is that parents chose to attend an independent school. It was not the only educational game in town so you had to abide by our rules.

We had a handbook for behavior expectations. I was told by school attorneys that as long as we followed the rules that we stated in the handbook, we were fine in terms of the law. For example, a nearby independent school expelled a student and didn’t go through the proper process for this act that was outlined in their handbook. It’s one of the few times that I can remember when a parent sued a school and won.

Justice Stephen G. Breyer’s statement confused the matter by saying there were exceptions to the students’ right to free speech such as “bullying, harassment, or threats of violence.” The problem with that statement is the theory of the “eye of the beholder” where such things such as harassment is not clear cut nor is bullying.

The Supreme Court decision had a chilling effect on schools. It had a chilling effect on me because things aren’t neat and tidy when working with kids and parents who will go to great lengths to protect their child. Breyer added that, “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Let’s be clear that the justices were focused on off campus behavior and that which should be in the public domain and what should be in the private domain.

There was one important thing that was left out of their decision that was vital. The reason that this became such an issue is that Brandi Levy thought the post would immediately be removed. It wasn’t. Someone took a screenshot. The post went viral. Does that make a difference? Levy also signed a rules agreement that said that she agreed to follow when she signed up, including “avoiding foul language and inappropriate gestures and any information regarding cheerleading, cheerleaders, or coaches on the internet.“ The Supreme Court needs to get on board the fact that the internet has significantly blurred what is on or off campus. It also needs to address a new definition of what is public and private domain.

The Supreme Court decision was also based on the inability of the school district to prove that Levy’s post deliberately disrupted the school environment. Talk about in “the eye of the beholder.” Who are they to say?

I have a problem with the court’s lack of understanding of schools, young people, and their parents today. Dare I say, that the Court lives in a bubble regarding this issue. Students and parents have memories like elephants. They never forget precedent setting behavior. They are the embodiment of “in the eye of the beholder.”

Did the Levy family and by extension the Court win with this decision? I think not!

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