A high school cheerleader who ranted on Snapchat scored an important win in the U.S. Supreme Court last month. But as we appreciate the victory for students and free speech, we should not overlook an accompanying opinion by Justice Samuel Alito.
His legal analysis not only reminds us why balancing free speech with administrative control is such a hard issue in public schools but also why school choice programs further free speech. The case, Mahaney Area School District v. B.L., involved a public high school student who failed to make the varsity cheerleading squad and the softball team.
Incensed at the rejection, the student posted to her Snapchat account a message laced with expletives beginning with an “F” and referring to the school and both extracurricular programs. She posted the message over the weekend from her own phone, but a Snapchat follower shared the message with a cheerleading coach, which led to a team suspension.
The high court found that the suspension violated the First Amendment’s protection of free speech. It noted that the Snapchat post was quite unlike past cases concerning speech on school grounds or made during school-sponsored activities. Even under those circumstances, the court has affirmed that students don’t “shed their constitutional rights … at the schoolhouse gate.”
In the most recent case, the court acknowledged that student speech rights might be different in other situations, such as with bullying or online schooling, but the majority concluded that the cheerleader’s suspension was well outside the school’s constitutional authority. More interestingly, Alito, joined by Justice Neil Gorsuch, who both also joined the court’s opinion, wrote separately and gave a succinct reminder of the party we often forget when it comes to schools and the law: the parents.
Parents, of course, have primary responsibility for raising their children. But, as Alito explained, the Supreme Court has long said they also have the primary responsibility for educating their children. Thus, for example, the court has protected the right of parents to educate their children in private schools.
Of course, just about any school, public or private, is going to place limits on what children can say. Can you imagine a functional classroom where students can blurt out anything they like at any time? But, as Alito pointed out, in the private setting, a parent consents to the child being at that school.
Whatever speech code the school has, whether it be a strict ban on profanity or a no-holds-barred laissez-faire encouragement of debate on any topic, parents allow their children to be subjected to those rules. If they don’t like it, they can send their children somewhere else.
Unfortunately, most U.S. families do not have that choice. State laws generally require most students to attend some form of school, and without school choice scholarship programs available, most parents cannot afford private school or commit to homeschooling. Thus, for most of the 90% of families whose children attend public schools, we can’t really say they “consent” to their schools’ speech policies.
As Alito explains, that’s why the First Amendment needs to have a role in balancing school speech restrictions. Many legitimate limitations exist, of course, but some go overboard.
Alito focused his opinion on how to think about the First Amendment and public schools. But there’s another lesson. The more that parents have the opportunity to consent, to freely choose other forms of education, the less the courts have to get involved in balancing these tricky issues. If more parents had more options to send their children to private schools or to stay home and educate their children themselves, then they would have more power to pick and choose what kinds of speech they want for their children.
Are you OK with your child mouthing off on Snapchat? Then don’t send her to a school that doesn’t allow that. If you want your kid to have the fullest opportunity to express herself on her new iPhone, then don’t choose a school like the one in the Mahoney case.
The more educational options that parents have, the more they can delegate their duties to programs they approve of — rather than those they are forced to deal with because they don’t have the means to go elsewhere. This does not mean the solution is to end public schools. But as long as choice remains unavailable, public schools are inherently a forced marriage.
Under those circumstances, parents and schools need the First Amendment to sort out what private parties can do on their own.
Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice.
