Why Justice Thomas is Wrong About MAHANOY AREA SCHOOL DISTRICT v. B. L.

by Josh Colletta
Published: Updated: Brandi Levy, the defendant in MANAHOY AREA SCHOOL DISTRICT v. B.L. Washington Post photo by Danna Singer.

First things first: I’m not a lawyer.  I’d probably be a good lawyer if I cared to become one, but I don’t, so I haven’t.

That said, I’m well-educated and well-informed, intelligent, knowledgeable about the law and legal precedent in areas where I care to learn about it, and I’ve repeatedly demonstrated all of those traits here and elsewhere.  It’s safe to say that I don’t know everything, but I know what I know.  One of the things that I know about is the First Amendment, including how it does and does not apply to student speech, the standing legal precedents, and where those previous rulings get it right and get it wrong.

In the case of a cheerleader who used her private Snapchat account to criticize her school and cheer team because she didn’t make the varsity squad, the First Amendment clearly protects her from retribution by the school.  She’s free to express her opinion about the situation and use vulgarity to do so.  The school does not have the right to punish her for that.  All but one Supreme Court justice acknowledged that fact today.

Before I continue, let me share my own experience in this realm.  It wasn’t a First Amendment issue, but I completely understand where the defendant in this case is coming from.

When I was a freshman, I went to Cooper City High School in Cooper City, Florida.  You may know the name for being the alma mater of NFL kicker Olindo Mare, NFL linebacker Rashad Weaver, supermodel Niki Taylor, or her late sister Krissi.  It is also the home of the Sound of Pride Marching Band, of which I was a member.  I was also a member of the concert band, which is technically a separate class, but most students take both courses.

In the summer of 1999, just after band camp had ended, the longtime director left to take a job as principal at (of all places!) our rival school, Western High.  As sad as we were to see him go, we were all happy for him and wished him the best of luck as he took the opportunity to advance his career.  He was a stellar educator, and he deserved the recognition.

Unfortunately, that left us in a bit of a tight spot.  Just as the school year was set to begin, we had no band director.  We had some subs for a while before the school hired a permanent director, who was talented and jovial, and we got along with him quite well, but certain students behaved rather poorly over the brief time he was there, and he was ill-equipped to rein them in, culminating some of those students drinking and trashing a hotel room on a weekend trip, at which point the poor guy gave up and resigned.  That caused the pendulum to swing in the opposite direction, in which the school hired a semi-permanent substitute who was strict and overbearing, and not particularly talented at teaching music, either.  Morale dropped, talented students dropped out of the class, and the band program suffered greatly for it.

Near the end of that ordeal, in the last quarter of the ’99-’00 school year, my father moved us to High Point, North Carolina, and I joined the Southwest Guilford High School Marching Cowboys.  Under a young and highly talented director, this program was on the upswing.  It had previously been a joke, and I’m not saying that to be mean or derisive.  It was literally a joke.  A situation similar to what had happened at Cooper City had previously happened at Southwest, and that had led to a band program in complete disarray.  The new director who had taken over the year prior to my arrival was putting it back together, and fast.  That year’s halftime show was the first effort, and it wasn’t anything special: a Disney-themed show with bad character costumes, a very basic drill, and a very small group of students.  The entire school looked down upon it.

But not for long.  The following year, the halftime show was music from “Jesus Christ Superstar” with a much more complex drill, more students who had come up from the middle school (on the director’s advice, as she taught the band classes there, as well), and we won several awards in competitions across northwestern North Carolina and southwestern Virginia.  The year after that, we had a sizeable group of around 150 students, my personal favorite of our halftime shows — “Rock, Roll, & Remember” with a HIGHLY ambitious drill set — and we not only won a ton of awards, we swept the day at the competition hosted by the high school from which our director had graduated!

Between those two years alone, the Southwest Guilford High School Marching Cowboys won more awards than the entirety of Southwest Guilford High School had ever won since the school opened in 1979.  We had to buy our own trophy case because A: the one case the school owned wasn’t big enough for us to add what we had won, and B: the other programs at the school jealously refused to let the school buy one for us.  It may not be the case there today, but Southwest was a very cliquey, petty, and altogether divided place at the time.  But one thing defied that rule: support for the band among the students.  We were successful, and success attracts fans.  Our football team had won all of six games in my four years there.  By my junior year, more people were attending the football games to watch OUR halftime show.  This was made obvious by the way the bleachers emptied out after halftime and those people never came back for the rest of the game.  I’m not exaggerating, either; the football team took notice, and the coach was furious.  He didn’t like us very much.  But there wasn’t really a whole lot he could do about it, so… too bad.  Be a better coach and start winning games.  (He never did, and he was later fired for cursing at a student.)

Then came my senior year.  Now, just for fun, I had thrown my hat into the ring for captain of the low brass section.  It was a “what the hell, why not?” kind of thing on my part, but if I had been chosen, I would have taken it completely seriously.  I took band seriously, these people were (and still are) my family, and I would never intentionally do anything to let them down.  But I didn’t get the job, and that was perfectly okay with me.  I had no resentment at all toward anyone, and I moved on.

The problems started a few weeks into the school year.  There was no departure at the top, our director was still there, but the student leadership struggled.  My section was just not getting the drill down, the trumpets were having to repeat the same musical passage over and over again, there were pockets of inattentive and disruptive behavior in several sections, and despite two weeks of camp and several weeks of practice altogether, the show just was not coming together.

One day, we had repeated the same set at least ten times (I wish I were exaggerating), and I had simply had enough.  It was turning into a disaster, and I was going to snap if I didn’t get away from it.  So I did.  I dropped my horn, walked up the steps to the press box, and my exact words to our director — I remember this distinctly — were “I’m going to go cool down.  Call me back out when they’re ready to get it right.”  I trudged across the practice field back to the band room, sat down in my seat, and did some homework.

That night, I wrote an e-mail to everyone in the band whose address I had — which was most of those who were there the year prior, minus the class who had graduated — stating my frustrations.  My unapologetic brashness and refusal to play respectability politics is not at all a recent development, and those traits were on full display in that message.  I called out section leaders for being lax.  I called out whole sections for not focusing.  I laid out every problem I saw and I did not hold back on the criticism for letting things get this bad.

The next day’s band class was quite interesting.  The director called me into her office — which we fondly called “The Federal Disaster Area” due to the fact that it was used more for storage than as an actual office, and there was stuff everywhere, so the fact that there were seats cleared for both her and myself was notable.  She tried to impress upon me that I had gone about this in the wrong way, that I should have come to her or the other section leaders in person.  I conceded that maybe I should have, but at the same time, I asked what would have been the point in that.  They were getting instruction from the director, they should have been paying attention and putting effort into the show, and they weren’t.  Maybe it would take some public shaming to get their attention.  She acknowledged that may be the case, and she even allowed that maybe she should have come down harder on them (which I actually disagreed with, I didn’t think she had any fault in this, but that was her perspective).  In the end, we agreed that such a thing wouldn’t happen again, and I apologized in front of the whole band for involving people who shouldn’t have been involved in that manner.  I made it clear that I was not apologizing for what I said, and that my criticisms still stand, but that the way I approached it could have been better.

That was sufficient.  There was no punishment.  There didn’t need to be.  Even if it had been called for, there was very little that could have been done, because what I did was on my own time, at home, privately, within the context of my own personal opinions.  The e-mail addresses I had been given were collected by another student the year prior on a voluntary basis so that we could all keep in touch, and the list was not under the control of any official band leadership or the school.  It was understood even back then that punishing me would have been legally questionable, if not outright illegal.

Now let’s tackle this young lady’s case, and Justice Thomas’s incorrect, hypocritical, and outright stupid dissent.

I don’t know what interpersonal or behavioral circumstances surrounded her situation, nor do I particularly care.  They don’t pertain to the legal details.  Whether she was talented enough to make the varsity squad or not is irrelevant.  The simple matter at the heart of this case is that she expressed herself outside of the jurisdiction of the school, and the school illegally punished her for it.

But of course, Justice Thomas, in keeping with his reputation for finding nuance whether it’s there to be found or not, says that’s not the whole picture.  Here’s how he frames the situation in the second paragraph of Part I-A in his dissent:

Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct.  Off campus, the authority of schools is somewhat less.  At that level of generality, I agree.  But the majority omits important detail. What authority does a school have when it operates in loco parentis?  How much less authority do schools have over off-campus speech and conduct?  And how does a court decide if speech is on or off campus?

First of all, great use of language there.  Accusing the majority of “using broad brushstrokes” is, in itself, using broad brushstrokes.  Anyone who reads the majority’s opinions can easily see they were anything but broad.  They broke down each argument, explained which were correct and which were not, and used those explanations as basis for their decision in favor of the defendant.  Pretty standard for Supreme Court decisions, as it should be.  They are the ones who interpret the law as it applies to government power and authority.  That’s not to say that they always get it right (far from it), but even when they get it wrong, it’s appropriate and necessary that they break their decision down into the details and build it back up to show how they came to their conclusion.  That’s exactly what happened here.  Yet Thomas accuses them of “using broad brushstrokes.”  Clever demonization.

But that’s just a red herring, inviting the reader to dismiss the majority opinion out of hand and not bother reading the rest of his own dissent, simply to accept it as gospel.  When we get to the core of his argument — the nuance that he found despite it not actually being there to find — it becomes clear that he’s pulling things out of thin air.  He invokes the principle of in loco parentis. This incident didn’t take place in loco parentis. The only thing this case has to do with school authority in loco parentis is that, if the incident had taken place in loco parentis on school property or using school resources, the school would have been justified in disciplining the student.  But that’s not what happened, and they didn’t have that authority, so in loco parentis does not apply here.

Then he asks how much authority schools have over off-campus speech and conduct.  In a situation where the school IS acting in loco parentis — i.e. a field trip, band competition, road game, etc. — they have the same authority as they do on campus.  Off-campus, they have no authority unless the parents explicitly grant that authority.  And it’s important to note the difference between public and private schools here, because at a public school, that authority must be explicitly granted on a case-by-case basis; it is not a blanket justification to act in loco parentis at any given time.  That’s why, even for the events I mentioned above, most public school systems require schools to have parents sign off on their child participating, because otherwise, there’s no legal justification for them to act in loco parentis. Private schools are a bit different, because they can require parents to sign a blanket contract which can include prohibitions against whatever activity they deem suitable to prohibit, both on and off campus.  However, the school in this case is a public school, so that doesn’t apply here, and neither does Thomas’s intentionally misleading rhetorical question.

His next question — “how does a court decide if speech is on or off campus?” — is just plain absurd.  If it occurred on campus, it occurred on campus.  If it occurred off campus, it DIDN’T occur on campus.  Same for the principle of in loco parentis on official school trips off of campus.  If it occurred off campus during an official school event which the parents had given their approval of, then the school was acting in loco parentis. If it occurred off campus at a time and place that the school had absolutely nothing to do with, then the school was NOT acting in loco parentis, and overstepped their bounds.  That’s exactly what this case made clear.  Thomas is begging the question.

As his dissenting opinion continues, Justice Thomas cites a Vermont Supreme Court case (Lander v. Seaver, 1859) in which a student who, while off campus, called their teacher “old” in the presence of both the teacher and several fellow students.  The court held that the teacher could discipline the student bceause the speech in question had “a direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and in-subordination.” He continues to explain that the Vermont court set this apart from speech that was “in no ways connected with or affecting the school” or had “merely a remote and indirect tendency to injure,” and that the law of proximate causation was used as justification to uphold the punishment.  In layman’s terms, that means that because the speech was intended to directly and immediately produce a desired outcome, it was found to be injurious and “bring the master’s authority into contempt.”  Thomas notes that this ruling and the precedent that it set was widely used to justify punishment for such speech in New England by at least 1882, and that it even served as early justification for punishing truancy.  Thomas caps that point off by citing cases from 1885 and 1871 (respectively) which labeled truancy as having “‘subversive’ effects on the ‘good order and discipline of the school'” and being “detrimental to good order and the best interest of the pupils.”

Justice Thomas then notes that several courts have held that almost no off-campus speech can be regulated, but with notable exceptions for speech that is connected to “the management or successful operation of the school.”  Which, I personally would note, is a broad brushstroke, indeed.

But the majority opinion, in Part II, actually CONFIRMED that injurious off-campus speech and activity can be punished by the school:

Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.  The school’s regulatory interests remain significant in some off-campus circumstances.  The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation.  These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.

Even B. L. herself and the amici supporting her would redefine the Third Circuit’s off-campus/on-campus distinction, treating as on campus: all times when the school is responsible for the student; the school’s immediate surroundings; travel en route to and from the school; all speech taking place over school laptops or on a school’s website; speech taking place during remote learning; activities taken for school credit; and communications to school e-mail accounts or phones. Brief for Respondents 36–37. And it may be that speech related to extracurricular activities, such as team sports, would also receive special treatment under B. L.’s proposed rule.  See Tr. of Oral Arg. 71, 85.

Now note this next paragraph in the majority opinion very carefully:

We are uncertain as to the length or content of any such list of appropriate exceptions or carveouts to the Third Circuit majority’s rule.  That rule, basically, if not entirely, would deny the off-campus applicability of Tinker’s highly general statement about the nature of a school’s special interests.  Particularly given the advent of computer-based learning, we hesitate to determine precisely which of many school-related off-campus activities belong on such a list.  Neither do we now know how such a list might vary, depending upon a student’s age, the nature of the school’s off-campus activity, or the impact upon the school itself.  Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as “off campus” speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community.

Did you catch that?  They directly shot down Thomas’s complaint that they declined to define “on-campus” and “off-campus” because to do so would nullify the school’s right to punish injurious behavior!  Thomas is literally arguing against his own point!

Additionally, Justice Alito blew the whole assertion that B.L.’s speech was injurious right out of the water in the second paragraph of Part V in his concurring opinion:

The school did not claim that the messages caused any significant disruption of classes. The most it asserted along these lines was that they “upset” some students (including members of the cheerleading squad), caused students to ask some questions about the matter during an algebra class taught by a cheerleading coach, and put out “negativity . . . that could impact students in the school.” The freedom of students to speak off-campus would not be worth much if it gave way in the face of such relatively minor complaints.  Speech cannot be suppressed just because it expresses thoughts or sentiments that others find upsetting, and the algebra teacher had the authority to quell in-class discussion of B. L.’s messages and demand that the students concentrate on the work of the class.

Part I-B of Justice Thomas’s dissent opens by saying, “If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it.”  That’s a pretty bold claim, given that every single page in the document before his section was spent outlining the constitutional reasons for departing from that historical rule.  I’m not even going to bother with that bullshit.  That’s just a straight-up lie.

Part II opens thusly:

The majority declines to consider any of this history, in-stead favoring a few pragmatic guideposts.  This is not the first time the Court has chosen intuition over history when it comes to student speech.  The larger problem facing us today is that our student-speech cases are untethered from any textual or historical foundation.  That failure leads the majority to miss much of the analysis relevant to these kinds of cases.

Again, that’s a lie, as I’ve already proven above.  They considered it and found it inapplicable to this situation.  He continues from there to rant on about the in loco parentis principle, insisting that the court should have taken it up and citing a bunch of cases that have absolutely zero relation to this one as his basis for argument.  He complains that the courts in those cases didn’t take it up, either, but instead of citing their reasons for not doing so, simply dismisses the choices as failures.  Basically, Thomas’s goal here was to claim that, because nobody cited the historical cases that have formed the basis for in loco parentis exceptions to a student’s First Amendment rights, nobody could possibly understand them like he does, therefore the whole opinion must be wrong.  It’s not only a red herring, it’s an appeal to false authority along the lines of Der Dummenfuhrer’s “I alone can fix it.”  Thomas is saying “I alone know the history.”  Both statements are blatantly false and boastful without basis.

Part II-B again insists upon the previously-referenced “Lander test,” claiming that because that damned newfangled computer technology allows us to communicate all around the world and not just in person like we did the olden days, schools must be able to act in loco parentis whenever they want!

First, the majority gives little apparent significance to B. L.’s decision to participate in an extracurricular activity.  But the historical test suggests that authority of schools over off-campus speech may be greater when students participate in extracurricular programs.  The Lander test focuses on the effect of speech, not its location.  So students like B. L. who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs.  For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here.

If Justice Thomas thinks that a profanity-laden screed about the football team coming from a regular student wouldn’t be as disruptive as such statements from the captain, he’s been out of the school environment for far too long.  High schoolers talk to each other.  Word gets around.  Mean things spread like a wildfire no matter who says them, and it happens just as often when the student body at large disagrees with the mean things as it does when they agree with them.  It would have a different type of disruptive effect, but it would be no less disruptive, and would absolutely affect the morale and potential performance for the team, including, possibly, the ability of the adults to lead it.  I refer you, once again, to the Southwest Guilford High School varsity football team from 1999 to 2003.  Granted, the coach really was terrible at his job (both as a coach and as a teacher — I know the latter from personal experience), and the team was just as much an isolationist clique as any other group on campus.  But if you don’t think that those of us who verbally observed those problems didn’t cause disruptions to their cohesion, you’d be wrong.  And I was a band geek, remember?  I didn’t count for shit in the self-appointed important social circles.  Thomas is completely clueless here.

Second, the majority fails to consider whether schools of-ten will have more authority, not less, to discipline students who transmit speech through social media.  Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.

Again, my high school experience came between the years of 1999 and 2003.  We didn’t have the Internet in our pockets.  In 1999, the rich kids were lucky if they had beepers.  By 2003, the rich kids were lucky if they had a two-way (please don’t make me explain that if you’re too young to remember), and there certainly weren’t enough of them on campus to cause much disruption.  Disruptive speech still managed to spread like a wildfire.  Thomas is still COMPLETELY clueless here.

Third, and relatedly, the majority uncritically adopts the assumption that B. L.’s speech, in fact, was off campus.

It was.

But, the location of her speech is a much trickier question than the majority acknowledges.  Because speech travels, schools sometimes may be able to treat speech as on campus even though it originates off campus.

No they can’t.

Nobody doubts, for example, that a school has in loco parentis authority over a student (and can discipline him) when he passes out vulgar flyers on campus—even if he creates those flyers off campus.

Invalid comparison.  Snapchat is not a school-operated venue, and the fact that it can be accessed AT school is completely irrelevant.  They could block Snapchat from campus devices, but they cannot block it from students’ phones, on or off campus.  Even if they did so, they would not have the authority to punish a student for posting critical messages ON Snapchat outside of school hours or activities, vulgar or otherwise.  Besides, Alito already dealt with the vulgarity issue in the second to last paragraph of Part V in his concurring opinion:

There is, finally, the matter of B. L.’s language.  There are parents who would not have been pleased with B. L.’s language and gesture, but whatever B. L.’s parents thought about what she did, it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity.  And B. L.’s school does not claim that it possesses or makes any effort to exercise the authority to regulate the vocabulary and gestures of all its students 24 hours a day and 365 days a year.

In short, the whole of Thomas’s complaint in this section is utter pablum, meant to entertain himself and himself alone.  He even admits that “There is little evidence that B.L.’s speech was received on campus,” so his entire point is moot.  He then goes on to lie again, claiming that the majority did not mention that the speech had taken place off-campus (they did).

His summary states that he’s dissenting because the court has not defined everything they established as doctrine in this case.  That claim doesn’t stand up to scrutiny.  The court leaves details to lower courts all the time, that’s nothing new — he’s participated in MANY such cases.  He’s dissenting to dissent.  Thomas has taken upon himself the mantle of Supreme Court Contrarian.  He wants to be viewed as, what he sees in his mind, the Last True Conservative on the Supreme Court.  His opinion is that even the supposedly uber-conservative new batch (Gorsuch, Kavanaugh, and Barrett) are too liberal, none of the other justices have the judicial ethic that he does, and that when he leaves, the Supreme Court will be a left-wing rubber stamp.  He wants his legacy to be “see, I told you so.”

His legacy will instead be that of the fool who argued for big government while the supposed “liberals” argued against it.

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