Friday, June 25, 2021

A Modest Proposal to Protect Profanity in Public Schools (Warning: Contains Profanity)

 by Michael C. Dorf

Perhaps the most remarkable aspect of Mahanoy Area School Dist. v. B.L.--the case of the disappointed cheerleader swearing via Snapchat--is that only Justice Thomas dissented. Although his dissent is based on the history of schools' in loco parentis authority, he is overall so skeptical of any free speech rights of minors that we can discount his dissent as something other than an effort to apply the same basic principles that the majority applies. Put differently, all eight Justices who grappled with Mahanoy as a matter of free speech doctrine came to the same conclusion: schools have some authority to regulate student speech that  occurs off school grounds, especially with respect to bullying and threats, but none of the justifications that underwrite that authority applied here, rendering the school's punishment of Brandi Levy excessive. (Levy has made no effort to disguise her identity, so I'll refer to her by name rather than by the initials that appear in the case.)

I basically agree with Justice Breyer's analysis. I am surprised that all of his colleagues agreed, however, because the case was difficult. Not difficult in the sense of what the school authorities ought to have done. To my mind, they obviously overreacted. But there will be other cases in which the school/not-school line is less clear and the question whether a student is engaged in bullying or threatening behavior is also less clear. The Mahanoy Court gave parents of disciplined students a powerful weapon--the ability to invoke the First Amendment in court pursuant to a fairly indeterminate multi-factor balancing test. Given the number of professed formalists on the Roberts Court, I would have expected someone to object that the Court ought to have issued a more determinate rule.

Admittedly, it's not clear that any sensible such determinate rule was available. There were seemingly only extreme options. The Court could have gone the Thomas route and said that students have no free speech rights, but that would be inconsistent with precedent and also draconian. Or the Court could have said, as the Third Circuit did, that schools have no authority to regulate speech outside school, but, as the majority rightly explains, that would have called for a highly artificial drawing of lines, especially now that we have grown accustomed to remote instruction and social media connecting students in a community defined by elements other than physical location. So I understand why no Justice endorsed a clear formal line; I just find it somewhat odd that none (except Justice Thomas) fretted over the lack of one.

Nonetheless, let me tentatively suggest that there was a fairly clear line available. The Court might have said that profanity when not threatening, demeaning, bullying, or disruptive of a class lesson or other official school event, is protected speech by high school students, regardless of whether it occurs on or off school grounds. 

In her snap, Levy displayed her middle finger and said "Fuck school fuck softball fuck cheer fuck everything." For that conduct, she was suspended from the JV cheerleading squad for a year for using "profanity in connection with a school extracurricular activity" in violation of team and school rules. Because the Court articulated relevant factors rather than a strict test, it's not entirely clear what the Court would have done with the case if it had arisen on school grounds, but there is some indication that the majority would have allowed the school greater leeway--perhaps permitting the same penalty it disallowed in the actual case--if Levy had made her gesture and dropped her F-bombs, say, in the school cafeteria.

Justice Breyer says that the school "presented no evidence of any general effort to prevent students from using vulgarity outside the classroom." Does that mean that if the school did make such an effort that what Justice Breyer calls its "interest in teaching good manners" would suffice to ban profanity outside the classroom but on school grounds? I hope not. A comparison with another SCOTUS school speech case illustrates why.

The Court describes Levy's speech as interchangeably "vulgar" and "profane." And the Court makes clear that its precedents permit regulation of "'indecent,' 'lewd,' or 'vulgar' speech uttered during a school assembly on school grounds," citing Bethel School Dist. No. 403 v. Fraser. In that case, a high school student was suspended (for three days, though he only served one day) and denied the opportunity to speak at graduation for giving the following nomination speech at an assembly:

I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president—he'll never come between you and the best our high school can be.

Justice Brennan's opinion for the Court in Bethel distinguished genuine political speech (as in the leading Tinker case) from Fraser's speech, offering essentially two interests to support the school's disciplinary action: first, an interest in inculcating a sense of decorum; and second, a concern about harm, especially to female students and younger students. He wrote:

The pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students—indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.

Now, let's suppose that Levy flipped the bird and dropped her F-bombs on school grounds. Surely if she did so in class or at cheerleading practice, that could have been properly subject to some form of discipline as disruptive and/or disrespectful. But in the actual Snapchat version and in my hypothetical live-action version in the school cafeteria, Levy did not direct her expletive at anyone in particular. She was simply venting to a friend. Under such circumstances, it seems that only the first of the two interests Justice Brennan identified in Bethel would apply--what Justice Breyer calls the school's interest in teaching good manners.

But really, how strong is a public high school's interest in teaching manners, where profanity is not directed at an individual and is not uttered in the course of any official school curricular or extra-curricular activity? Or even occasionally in the course of some such activities? Suppose that during a chemistry class a student dropped a beaker of acid and exclaimed "fuck!" Or suppose that while forming a human pyramid, a cheerleader at the base slipped, causing the topmost cheerleader to take a nasty spill. If she exclaims "fuck" rather than "ouch," is that really grounds for any sort of discipline?

Maybe what I'm saying has less to do with the First Amendment than school policy. Unlike Cohen's "Fuck the Draft" or even Levy's obvious criticism of the school authorities over how the cheerleading and softball teams are constituted, a student who uses "fuck" to mean what Ned Flanders would mean by saying "gosh" or "sugar" is not expressing a political message that the school is trying to censor.

Still, constitutional issues of equal protection and speaker-based discrimination implicating free speech are in play. Justice Brennan's Bethel opinion was appropriately attuned to the gender dynamic of Fraser's speech. There is a potential gender dynamic lurking in Mahanoy as well. If the policy really targets profanity as such, one suspects that girls using profanity are deemed unladylike, whereas boys doing so (a wide receiver who exclaims "fuck" after dropping a pass he ought to have caught, say) are given more slack. It's possible that an anti-profanity policy will be enforced in a way that is evenhanded by gender, but the risk that it won't be is substantial.

Meanwhile, we can grant that in answering questions in algebra or social studies class, students should not be permitted to tell teachers to go fuck themselves, but what is the point of forbidding profanity that targets no one in particular in informal school settings? After all, there is evidence that swearing promotes physical and emotional health. Maybe schools should affirmatively encourage students to use profanity, so long as it is not directed at anyone in particular!

To be sure, there is some minimum age--the beginning of middle school perhaps--below which a blanket ban on profanity could be defended. Many elementary school children will have difficulty understanding the difference between profanity--"bad words" that are considered impolite because they are swear words--and truly bad words like racial epithets that are not simply impolite but offensive because they are hurtful. Liberating 7-year-olds to swear like sailors might unintentionally also liberate them to talk the way Donald Trump talks when the only people in the room have signed NDAs or are close relatives.

But as the Supreme Court explained in a 1983 case involving contraceptive ads sent through the mail: "The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Likewise with profanity and adolescents. The fact that 7-year-olds may be unable to tell the difference between the n-word and an F-bomb is no reason to punish 17-year-olds for harmlessly letting off some steam through profanity.

3 comments:

Joe said...

Justice Alito's concurrence might surprise people since it is pretty speech friendly, but his Bong Hits for Jesus concurrence also was speech friendly.

High School SCOTUS has an interesting video podcast with three students discussing the opinion though one quiet member barely contributes (she makes some good points when she does). https://highschoolscotus.wordpress.com/

The blog post here includes various instances of what is sometimes called "fleeting" expletives. So, the student might say it in passing, as an exclamation when hurt or perhaps a not too overused emphasis. You can imagine also limited "public interest" type references, dropping song lyrics or remarks of public figures.

One question would be the "Fuck the Draft" scenario. It seems understood by many that a high school student wouldn't be about to wear that jacket at school. This might not be totally clear in theory. And, what if instead they had a barely apparent necklace or chain that has an expletive on it. Or, maybe a tattoo that is apparent in gym class.

I'm thinking "letting off steam" is not the only correct usage here. A word on the Bethel case. I listened to the oral argument recently and thought the advocate didn't do a good job. I think it's a closer call -- he could have explained how crude humor and metaphor repeatedly is used in political campaigns. Lincoln used crude humor. So, we are left with Brennan's comments and concerns of line drawing (see Stevens dissent).

Anyway, I agree we can assume a limited right to use profanity, with certain words being used more carefully. The word used against women, e.g., starting with "c" very well might be more problematic for equality reasons then "fuck." See me next Tuesday for more on that.

Jason S. Marks said...

Professor,

I had hoped to hear your views on Alito's concurrence. As in, why did he write it at all.

A close read shows how he parallels and even parrots much of the exact same points as the majority opinion. Why write separately? He states it is to ask a "simple" question: where is the authority to regulate speech at all in school? Instead of answering, "duh...state action," he goes into the history of in loco parentis. In effect, when you read his concurrence carefully, you see that Alito would like to overrule or recast Tinker because he does not want students to have individual rights. Rather, in his mind, the rights they have are derivative of their parents. Schools can only do what the parents would have consented to if in the same position. His not-so-subtle attempt to rewrite Tinker has not drawn much attention, but it should, particularly from a justice who has advocated for vigorous speech protection in other contexts.

It also fits the general tone of Alito's opinions this term as between the cantankerous and the curmudgeonly. He has written more opinions than any other justice this term I think (maybe Thomas has more?), and clearly has been unhappy the Court is not following his lead.

Thoughts?

CJColucci said...

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