High school cheerleader Brandi Levy was a freshman in May 2017, and therefore probably fifteen years old, when, wracked with frustration, she composed a vulgarity-laced Snapchat about student life. In response, her school district ejected her from the cheer squad. The resulting lawsuit has dragged on for nearly four years (Levy is now in college), and hits the Supreme Court this month. Her case will have First Amendment ramifications for years.
The same day I learned about Brandi Levy’s case, footage emerged from the school where I formerly taught, the University of Nebraska at Kearney, of a solo protestor. The individual was waving a succession of placards, including one reading “COVID Killed George Floyd,” and selling lapel buttons with antivax slogans off a folding table. Though some students tried shaming him into desisting, the school claimed powerlessness, calling it a free speech issue.
Discovering these two stories together, I descended into a doom-spiral of deliberation about free speech. I’ve previously called myself a “free speech absolutist,” though like most absolutists, I’m not that absolute. Some speech acts are clearly unacceptable, like inciting violence or proscribed obscenity, and the Supreme Court agrees with me. But students’ speech rights have always been lawfully circumscribed, and that creates moral paradoxes.
Legal scholars observing Brandi Levy’s case have agreed: the Tinker precedent asserts that any speech which doesn’t disrupt school functions is lawful and protected. Equally important, school authority has traditionally been construed to end at the campus perimeter. Yet the school raises an important counterpoint: if they can’t police speech taking place online, how can they combat cyberbullying? And where is the campus perimeter in this age of remote learning?
I remember school officials claiming complete powerlessness when bullies pursued, harangued, and even physically struck me off-campus. Didn’t happen here, they said, so it’s not our jurisdiction. But behavior originating on-campus carries into off-campus life, a tendency amplified by digital media reach. Since kids are legally compelled into school, surely schools have some responsibility when campus toxicity spills into the community.
Yet I reflexively flinch from giving schools sweeping authority over students’ non-scholastic behavior. People—bosses, pastors, bureaucrats—given unrestricted authority over others’ choices frequently, even consistently, abuse that power. Especially in today’s economy, where parents’ working hours have become painfully lengthy, the desire to hand in loco parentis authority to schools, which are often short-staffed and underfunded, courts moral disaster.
@UNKearney with all of the things happening in the world right now, ignorance on our campus should not be tolerated especially on a University Campus that has less than 20% of the population that are POC pic.twitter.com/q9UHgj8ZZP
— jeni.chez (@jeni_chez) April 13, 2021
The inability to concisely resolve this contradiction gets amplified by the numbskull at UNK. Universities, as bastions of knowledge and research, should surely have authority to prevent anyone peddling bullshit—literally peddling, since the protester was evidently selling his slogan buttons for money. Most college students are at least 18, and therefore nominal adults, so they have lawful adult liberties, but universities have a mission to teach something like reality.
If schools have authority to police students’ online behavior when they spout vulgarities about their extracurriculars, surely they have authority to silence people preaching balloon juice. But if free speech protects a frustrated teenager off-campus, surely it protects a nonviolent protester who isn’t disrupting campus activities. Even if what he says is flat damn wrong. (Retrogressive views like this are widespread on my former campus: UNK isn’t exactly UC-Berkeley.)
This contradiction highlights the problem with rules-based school governance. The Supreme Court will dispense a ruling in Levy’s case that either expands or contracts school authority, and their ruling will apply nationwide. But changing technology, and COVID, prove that the boundary between “school” and “life” isn’t circumscribed by physical campus. We’ve applauded people getting fired for participating in the January 6th insurrection, so adult lives aren’t insulated either.
The delineation between school and life, and between free speech and action, is decided not by rules, handed down by black-robed justices, but by deliberation, evidence, and language. Boundaries of acceptable speech are fundamentally moral decisions, and whatever ruling SCOTUS makes will enshrine their morality for at least two generations. A federal case, while sometimes necessary (Brown v. Board), also forecloses debate when circumstances change.
Which, beyond a doubt, they will, in ways we cannot predict. And sooner than later.
Maybe schools need some guidance. The University of Nebraska system, lacking clear guidelines, has a history of wildly inconsistent positions. Yet whatever position SCOTUS favors will have knock-on effects. Increased authority will put schools in competition with parents; circumscribed authority will make it difficult to eject bullies and professional liars. That’s the problem with moral precepts, I guess. Reality doesn’t conform itself to our rules.
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