Legal Docket - Where does school authority end?

MARY REICHARD, HOST: It’s Monday morning and welcome to another week of The World and Everything in It. It’s May 17, 2021. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

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EICHER: Well, let’s get into this week’s Legal Docket.

Today, analysis of two oral arguments from April.

This first one may strike you as the kind of dispute that at best would resolve at the school-board level, certainly not in the federal courts, let alone the Supreme Court.

That said, it’s often the case that larger principles are at stake in the seemingly smallest controversies. And that’s what we have here, where a sophomore girl in high school didn’t make the varsity cheerleading team. Instead, she made junior varsity.

Her disappointment turned into spectacle. While off campus, she grabbed her phone and fired off a Snapchat picture of herself and a friend, complete with an obscene gesture and a vulgar caption directed at the school.

REICHARD: Someone screenshotted the Snap and showed it to a coach who was not amused. Foul language and unsportsmanlike conduct are no-nos under official school policy, and so the coach suspended the girl for a year from the JV squad.

The girl and her family sued, and so the Snapchat spat became a test of the First Amendment. The girl’s argument: that the constitution protects her right to this speech, regardless of how distasteful it was.

The question now is under what circumstances can public schools police off-campus speech and punish students for what they say online?

Supreme Court precedent informs this case in some ways. Here’s Chief Justice John Roberts in 2007 announcing the court’s opinion in another dispute over student speech.

ROBERTS: First, students do not shed their First Amendments rights at the school-house gate. Second, the nature of those rights has to be assessed in light of the special characteristics of the school environment. The rights of students at school are not the same as the rights of adults in the community at large.

So, a balance between student free speech and school mission. Schools may limit what students say when what they say or how they say it “substantially disrupts” the education process.

That’s the legal key: substantial disruption. But what made that case different from this one was that the older case turned on the location of that speech, as in the “schoolhouse gate.”

But now we’re talking about the internet. So where to draw that line? Where does school authority begin and where does it end in the context of digital media?

And, note that we’re not simply talking about the context of technology. I was interested in Justice Stephen Breyer’s tacit acknowledgment of social change as an important contextual consideration:

BREYER: A few years ago, a superintendent of schools, I think in San Francisco, said, you know, schools have changed a lot, the public schools, since when I went there. He said, today we don't just teach classical subjects. We're there to help the child have adequate health, in many cases, to see that he's adequately fed. In quite a few cases, we become a caretaker, and we don't want to send them home immediately because there's nobody home, and we have to plan after-school activities. There are dozens of areas that didn't used to be thought of as within the purview of the public school. Today, in many places, they are.

So, family breakdown, teenage immaturity, school mission, and the Internet. All threads that inform how the justices thought about this case.

One justice used to coach girls’ basketball. Justice Brett Kavanaugh wondered whether the coach in this case may have overreacted.

KAVANAUGH: And to show how much it means to people, you know, arguably, the greatest basketball player of all time is inducted into the Hall of Fame in 2009 and gives a speech, and what does he talk about? He talks about getting cut as a sophomore from the varsity team. And he wasn't joking. He was critical 30 years later. It still bothered him. And I think that's just emblematic of how much it means to kids to make a high school team.

The school’s lawyer, Lisa Blatt, acknowledged the universal feeling of being disappointed.

But still.

BLATT: I understand that Michael Jordan was upset, but, at some point, presumably, he was respectful to his coaches, and there's a line that coaches always have to—coaches have to know their team and know what works. They have to act in the best interest of all teammates, team participants, and one of the things you learn...

KAVANAUGH: But, in the moment, you know that kid's going to be upset. And you know, you recognize that. I'm not saying this is justified necessarily. I'm not. But a year seems like a lot.

BLATT: Well, I mean, again, then you're going to be in the business of ...

KAVANAUGH: I agree. That's the problem, I agree.

Justice Amy Coney Barrett, mother of 7, also has practical experience with upset children. Perhaps in lieu of being kicked off the team, she wondered, a softer discipline approach?

BARRETT: Being told, we're aware of the Snapchat. This is not good for team cohesion. This is not respectful of your coaches. If we see any of this kind of behavior on the field or at practice or undermining morale, there is going to be a consequence, but not imposing one yet. That would be okay, right?

BLATT: Yes, but there are cases where the student was asked to apologize and the student sued the coach and the school and said, “I don’t have to say I’m sorry. I have a First Amendment right not to say I’m sorry.”

Blatt argued that to limit school authority to only what’s said on campus makes no sense. A better test is the level of disruption a student causes, on or off campus. And that should include speech on social media directed at the school.

On the other side, lawyer David Cole. He argued for the angry teen that precedent favors his side. It’s simple, he argued: the school has no power over students outside of school. Justice Barrett asked: what if a student emails the school or teachers. Would that be within the school environment? Cole said yes:

COLE: Yes, because you would be—you would be subjecting yourself to the school's jurisdiction. If you're—if you call the school, if you send an e-mail to the school account, you are now subjecting yourself to the jurisdiction.

Justice Breyer wryly noted that these days, potty-mouthed teens are so common, schools would have little time left over for much else if they had to punish ugly language.

BREYER: How do I get a standard out of that? I’m frightened to death of writing a standard.

Frightened, because home is supposed to be the domain of parents. School is supposed to be the domain of teachers and administrators.

Whatever rule the court comes up with is likely to create new problems under the law of unintended consequences.

Still, in this rather murky area of the law of student free speech and discipline, schools do need guidance.

Whether the dividing line will be the location of the student, who is supervising that person, or something else is what the justices must decide.

This last case today is about how to apply President Trump’s criminal justice reform law. Congress approved it in 2018 and it’s called the First Step Act.

It let certain drug offenders get another hearing to adjust stiff prison terms. Again, it’s all about a single word, and you’ve probably guessed by now that the word is “certain,” as in certain drug offenders. Which ones?

I won’t get into the details of the case or the very dense history of sentencing reform.

Except to say that right now, big-time offenders caught with many grams of cocaine can get another hearing.

But small timers with small amounts? They cannot.

So the justices have to work out whether the First Step Act as written applies to those little guys.

The Biden administration changed the government’s stance at the last minute to support shorter sentences for the little guys. So that meant a lawyer had to come in at the last minute to defend the idea that the First Step Act did not intend for the small-time offenders to get another sentencing hearing.

Justice Breyer worried that everybody and his brother is going to want another sentencing hearing, and that’s not what the First Step Act intended.

Listen to this exchange with lawyer Adam Mortara whose job is to defend essentially the argument that Breyer makes here. Listen:

BREYER: The amounts don’t matter once it’s a felony. So there’s no reason that they should get to ask for re-sentencing. Now I just stated something that’s in my mind and I want you to think about it and admit if what I’ve said is wrong or right, or should be modified.

MORTARA: Justice Breyer, I think what you said is 100% correct. And I would further point out that reclassifying somebody as a career offender or not is precisely what is occurring in some of these resentences …

BREYER: All right. If I’m correct, why did the government argue what it argued? They know these as well as I do, probably better!

MORTARA: Your honor, I am here to explain many things. The behavior of the United States government in this case is not one of them.

Awkward! You could hear a pin drop.

Pity the lawyer who had only a few weeks to prepare for oral arguments and then faces that kind of questioning!

I doubt the justices will extend leniency to career criminals.

This, even though it’s popular across the political spectrum to reduce penalties for drug offenders. But the issue here is about the meaning of the law as it is written and where it fits into all the sentencing revisions made along the way.

And that’s this week’s Legal Docket.

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