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submit a legal analysis of three articles of their choice

from three different constitutional areas by. Students are expected to analyze the substance of each article, apply it against one’s current knowledge base in legal issues/practice, and make an informed judgment about how each would/would not change their administrative behavior in a similar situation. 1 – 1.5 pages per article submitted in one continuous document. If you review a case, follow the “Citing a Case” format. If you review an article, write it in a narrative style. Include Reference page

Arkansas Law Review
Volume 72
Number 2
Article 2
December 2019
Breaking the Norm of School Reform
Derek W. Black
University of South Carolina
Follow this and additional works at: https://scholarworks.uark.edu/alr
Part of the Educational Assessment, Evaluation, and Research Commons, Education Law Commons,
Elementary Education Commons, and the Secondary Education Commons
Recommended Citation
Derek W. Black, Breaking the Norm of School Reform, 72 Ark. L. Rev. 307 (2019).
Available at: https://scholarworks.uark.edu/alr/vol72/iss2/2
This Article is brought to you for free and open access by ScholarWorks@UARK. It has been accepted for inclusion
in Arkansas Law Review by an authorized editor of ScholarWorks@UARK. For more information, please contact
ccmiddle@uark.edu.
Breaking the Norm of School Reform
Derek W. Black
Major school improvement efforts have failed in recent
decades for two reasons. First, the endless pursuit of reform for
reform’s sake over the last few years undermines school
improvement.1 Second, we have abandoned or, at least, lost our
focus on the fundamental educational goals that animated
education policy decades—and sometimes centuries—ago.
Those goals, while never fully attained, have always sought to
move us to a more just system of public education. By losing that
focus, our education systems remain wedded to practical norms
that consistently undermine equal and adequate educational
opportunities.
The modern policy conversation is too quick to throw out
overgeneralized claims that “[public] schools are failing.”2 If
they are failing, we have to reform them, they say. 3 But the term
“failing” is rarely defined in any meaningful way. Does failing
mean that students’ standardized tests scores are not high? All
students? Does failing mean that schools are not providing
students with the opportunities they need, that schools are not
equal, or that schools simply are not living up to our expectations
on some particular metric? Any number of norms are embedded
in the concept of failing and when we do not define the term, we
skip a lot of complicated questions about what it means for a
school to succeed. Equally important, we also open the policy
conversation to proposals that purport to fix the “failure,” but
1. See Martha Minow, Reforming School Reform, 68 FORDHAM L. REV. 257, 257–60
(1999).
2. See generally Valerie Strauss, How Are America’s Public Schools Really Doing?,
WASH. P OST (Oct. 15, 2018), https://www.washingtonpost.com/ education/2018/10/15/howare-americas-public-schools-really-doing/ [https://perma.cc/QW83-REFB] (discussing and
rebutting the common notion that schools are failing).
3. See, e.g., Press Release, The White House, Office of the Press Sec’y, President
Outlines Education Reform in Boston Speech (Jan. 8, 2002), https://georgewbushwhitehouse.archives.gov/news/releases/2002/01/20020108-5.html [https://perma.cc/R247RVQQ] (“It is important to free families from failure in public education. And that’s what
this bill does.”).
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which are designed to further agendas that we do not fully
recognize. 4 Those agendas may promote values and concepts of
education that are entirely inconsistent with what the broader
public would prefer had the value-based conversation occurred.5
These agendas have opened our schools to reforms that are quite
simply small, petty, and misdirected.
TWO DECADES OF POINTLESS REFORM
In just the past two decades alone, public education policy
has been on a merry-go-round and, from my perspective, has been
largely pointless other than for its rhetorical value. Policymakers
have argued that schools need more accountability, more rigorous
curriculum, and highly qualified teachers. 6 The meaning of each
of these concepts requires further explanation.
Federal
policymakers have not even been unable to settle on the
appropriate persons to make these decisions and who to hold
accountable for failures. Instead, federal policy has simply
shifted responsibility and accountability from one party to
another.7
Federal policy has attempted to change who decides what
schools teach, how to measure whether teachers are qualified,
how to measure student achievement, what level of student
achievement is sufficient, and how schools and teachers will be
accountable for any potential shortcomings on these measures.8
In the 1990s, the problem, we were told, was that there was no
accountability for low performing schools. So the No Child Left
Behind Act held all schools, not just low performing schools,
4. SCHOTT FOUND. FOR PUB. EDUC. & THE NETWORK FOR PUB. EDUC., GRADING
STATES: A REPORT CARD ON OUR NATION’S COMMITMENT TO PUBLIC SCHOOLS 2
(June 2018), http://schottfoundation.org/sites/default/files/ grading-the-states.pdf (“[O]ur
nation has embarked on a troubling course that steers us toward school privatization,
exclusivity and division. The present Department of Education under the leadership of
Secretary of Education Betsy DeVos, promotes privatized programs and choice, and has a
decidedly hostile view towards the support of students attending public schools.”).
5. Id.
6. See Derek W. Black, Abandoning the Federal Role in Education: The Every Student
Succeeds Act, 105 CALIF. L. REV. 1309, 1332–36 (2017) (summarizing changes in federal
policy through the reauthorizations of the Elementary and Secondary Education Act).
7. Id. at 1333–35.
8. Id. at 1331–40.
THE
2019
BREAKING THE NORM
309
accountable for the achievement of all students. 9 When that
strategy faltered, the Department of Education was forced to
waive widespread failure.10 By 2011, roughly eighty percent of
the nation’s schools were set to be labeled as failures under the
Act.11 Rather than admit the flawed premise, the Department
attempted to shift responsibility to teachers. Teachers, rather than
schools, would suffer harsh consequences when their students
underperformed expectations.12
That new accountability
strategy, however, soon faced more challenges than had the No
Child Left Behind Act. The teacher accountability measures
proved to be too complicated, unreliable, and thus controversial. 13
Congress passed legislation just three years later that shifted
accountability and expectations yet once again. 14 The Every
Student Succeeds Act moved back to an unpredictable
accountability system that also left the consequences for failure
entirely up to the states.15
Academic standards and curriculum followed a similar
pattern. Local school districts have traditionally made the vast
majority of education policy decisions about how and what they
teach for themselves. School districts purported academic
failures and uneven approaches, however, suggested that
policymakers could not trust school districts with these decisions.
No Child Left Behind’s solution was to require that states set
“challenging” academic standards and administer standardized
9. No Child Left Behind Act (NCLB) of 2001, Pub. L. No. 107–110, § 1111(b)(2)(F),
115 Stat. 1425, 1447–48 (2002) (codified at 20 U.S.C. § 6311) (requiring that all students
reach a specific, proficient level of academic achievement).
10. See Derek W. Black, Federalizing Education by Waiver?, 68 VAND. L. REV. 607,
647–48, 652–57 (2015).
11. Sam Dillon, Overriding a Key Education Law, N.Y. TIMES (Aug. 8, 2011),
http://www.nytimes.com/2011/08/08/education/08educ.html
[https://perma.cc/796U7JUB].
12.
U.S. DEP’T OF EDUC., ESEA FLEXIBILITY 6 (June 7, 2012),
https://www.ed.gov/sites/default/files/esea-flexibility.doc [https://perma.cc/J88H-RH5W]
(requiring teacher evaluation systems) [hereinafter ESEA FLEXIBILITY].
13. Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 CALIF. L.
REV. 75, 91–92 (2016).
14. Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, 129 Stat. 1802 (2015)
(codified at 20 U.S.C. § 6301).
15. Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, § 1111(b)(1)(G), 129
Stat. 1802 (2015) (codified at 20 U.S.C. § 6311); Andy Smarick, Accountability and The
Every Student Succeeds Act, THOMAS B. FORDHAM INST. (Dec. 1, 2015),
https://edexcellence.net/articles/accountability-and-the-every-student-succeeds-act
[https://perma.cc/DZ9W-AWXC] (characterizing the wide discretion left to the states).
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tests to determine whether schools were adequately teaching
those standards.16
Within a few years, the data did appear to validate one
troubling lesson: states cannot be trusted either. 17 States
manipulated their standards and tests to show that their schools
and students were either already proficient or rapidly moving in
that direction. 18 Yet, national tests showed nothing could be
further from the truth.19 Secretary Arne Duncan’s solution was
for the federal government to play a much larger role in academic
standards and testing regimes.20 The Department heavily
encouraged the development of the “Common Core” and its
companion testing systems.21 It used competitive grants and the
threat of sanctions to force states to adopt the Common Core.22
The controversy and backlash that followed was intense, begging
the question of whether the federal government was any better
situated to set education standards and hold schools accountable
than states and localities. Once Congress fully appreciated what
the Secretary had done, it was incensed. The Every Student
Succeeds Act stripped the Secretary of virtually all power to do
anything even remotely close in the future and made it clear that
states would begin making these decisions for themselves again. 23
16. No Child Left Behind Act (NCLB) of 2001, Pub. L. No. 107-110, § 1111(b)(1),
115 Stat. 1425, 1444-45 (2002) (codified at 20 U.S.C. § 6311).
17. See, e.g., Paul E. Peterson & Frederick M. Hess, Few States Set World-Class
Standards, 8 EDUC. NEXT 70, 71–73 (2008).
18. See id. (finding many states had lowered their standards).
19. See generally VICTOR BANDIERA DE MELLO, NAT ’L CTR. EDUC. STATS.,
MAPPING STATE PROFICIENCY STANDARDS ONTO THE NAEP SCALES: VARIATION AND
CHANGE IN STATE STANDARDS FOR READING AND MATHEMATICS, 2005–2009 2 (2011),
https://nces.ed.gov/nationsreportcard/ pdf/studies/2011458.pdf [https://perma.cc/4N5NCPQ9].
20. Black, supra note 10, at 650.
21.
See College- and Career-Ready Standards, U.S. DEP’T OF EDUC.,
https://www.ed.gov/k-12reforms/standards [https://perma.cc/8PSQ-EG2U] (last visited
Mar. 7, 2019).
22. The Common Core was funded through a variety of state, federal, and private
funds. Valerie Strauss, Following Common Core Money: Where Are the Millions of Dollars
Going?, WASH. P OST (Nov. 24, 2013), https://www.washingtonpost.com/news/answersheet/wp/2013/11/24/following-the-common-core-money-where-are-millions-of-dollarsgoing [https://perma.cc/5VL5-MTR2]. The U.S. Department of Education, however, put the
program over the top by making its adoption an obvious means by which to qualify for Race
to the Top grant funds and for No Child Left Behind Waivers. Black, supra note 10, at 650.
23. Alyson Klein, ESSA Architect Q&A: Sen. Lamar Alexander, R-Tenn., EDUC.WK
(June
13,
2016,
8:40
AM),
http://blogs.edweek.org/edweek/campaign-k12/2016/06/essa_architect_q_a_sen_lamar_a.html [https://perma.cc/32RS-8R2Y] (quoting
2019
BREAKING THE NORM
311
The anti-federal sentiment was so strong that the Act provided
that states need not even send their academic standards to the
Secretary.24 Rather, states would simply self-certify that their
academic standards are challenging. 25
Teacher policy has followed a similar carousel approach.
Local districts traditionally controlled teacher quality, but
evidence that many schools struggled to hire and retain quality
teachers prompted Congress, in the No Child Left Behind Act, to
demand that states exert more control. 26 States, however, did
almost nothing to improve access to quality teachers in
disadvantaged communities. In fact, state failures on this
measure were almost immediately obvious. 27 As with academic
standards and testing, the Secretary Duncan’s solution was to
exert federal power, requiring schools to hire, fire, and promote
teachers based on how their students performed on standardized
exams. 28 But when it became apparent that rating teachers based
on their students was more of an art than science, Congress told
states that they should take control of teacher quality again. 29
Embedded in each of these changes were also entirely distinct
concepts of what it means to be a good teacher—from certified to
highly qualified to high performing to a point where we are no
longer sure.
Senator Alexander as saying, “the law is the most significant devolution of power to the
states in a quarter century, certainly on education”).
24. Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, § 1111(b)(1)(A), 129
Stat. 1802, 1823-24 (2015) (codified at 20 U.S.C. § 6311) (“Each State . . . shall provide an
assurance that the State has adopted challenging academic content standards and aligned
academic achievement standards . . .” and indicating that states “shall not be required to
submit such challenging State academic standards to the Secretary.”).
25. Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, § 1111(b)(1)(A), 129
Stat. 1802, 1823-24 (2015) (codified at 20 U.S.C. § 6311).
26. No Child Left Behind (NCLB) Act of 2001, Pub. L. No. 107-110, §§ 1119(a)(1)(2), 9101(11), 9101(23), 115 Stat. 1425, 1505-06, 1958-59 (codified at 20 U.S.C. §§
6319, 7801) (requiring “highly qualified” teachers).
27. EDUC. COMM’N OF THE STATES, ECS REPORT TO THE NATION : STATE
IMPLEMENTATION OF THE NO CHILD LEFT BEHIND ACT RESPECTING DIVERSITY AMONG
STATES 63 (2004) (“In March 2004, 23 states appeared to be on track to meet the Highly
Qualified Teachers Definition requirement, compared with 10 in March 2003.”).
28. ESEA FLEXIBILITY, supra note 12, at 2–3.
29. Every Student Succeeds Act (ESSA), Pub. L. No. 114-95, §§ 2101(e)(1)-(3), 129
Stat. 1802, 1924-25 (2015) (codified at 20 U.S.C. § 6611) (prohibiting the Department from
“mandat[ing], direct[ing], or control[ing]” any state’s teacher “evaluation system,”
“definition of teacher . . . effectiveness,” and teacher “professional standards, certification,
or licensing”).
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In a nutshell, the above changes in accountability, standards,
testing, and teachers describe the national transition from the
Improving America’s School Act to the No Child Left Behind Act
to the statutory waivers of No Child Left Behind to the Every
Student Succeeds Act. Each statute raised difficult empirical and
policy questions. What is the best measurement of student
achievement, of teacher quality? What is the best strategy to
encourage schools to improve? Student achievement might be
measured by classroom grades, proficiency on standardized tests,
growth on standardized tests, achievement in relation to the
average, graduation rates, or something else. Teacher quality
might be captured by academic credentials, years of experience,
their students’ performance, principal observations, national
board certification, or some combination of all of the above.
Schools might be encouraged to change through carrots or sticks.
The most typical sticks are those that label schools as failing and
potential sanction, close, or remediate them. 30 A carrot might be
to provide schools with more resources and money, but exactly
which resources and how much money are subjects of intense
debate.31
Surely there are answers to these policy questions. Surely
there are reforms and strategies that would work to improve
educational opportunity. But from afar, these policies strike me
as analogous to attempts to rearrange the deckchairs on the
Titanic. These policies ignore fundamental problems in our
public schools that require fundamental changes. When the
Titanic was sinking, no amount of logistical ingenuity was going
to fix the fundamental problem—water was uncontrollably
gushing into the hull of the ship. No ingenuity was going to
change the fundamental limitation on how many people would
survive: the Titanic set sail with an insufficient number of life
boats.
30. See, e.g., Every Student Succeeds Act (ESSA), Pub. L. No. 114-95,
§ 1111(c)(4)(D), 129 Stat. 1802, 1834-37 (2015) (codified at 20 U.S.C. § 6311) (subjecting
schools in the bottom 5% of performance to intervention); James E. Ryan, The Perverse
Incentives of the No Child Left Behind Act, 79 N.Y.U. L. REV. 932, 933 (2004) (“Schools
that receive federal funding and fail to meet their targets face increasingly harsh sanctions
for every year that they fail.”).
31. See generally Cory Turner, Can More Money Fix America’s Schools?, NPR (Apr.
25, 2016, 6:00 AM), https://www.npr.org/sections/ed/2016/04/25/468157856/ can-moremoney-fix-americas-schools [https://perma.cc/2F7G-PV6S].
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BREAKING THE NORM
313
Our public schools are not the Titanic. They are not destined
for failure. But they do labor under entrenched practices and
policies that inevitably produce inequitable and inadequate
educational opportunities. These policies and practices include
state budgets that are based on how much legislators are willing
to spend on education rather than student need;32 funding
formulas that distribute those inadequate resources unequally
among schools;33 student assignment policies that segregate
students both between and within schools;34 and teacher
assignment policies that reserve the most qualified teachers and
most rigorous curriculum for the privileged few. 35
These are the facts. We do not spend enough on our
schools.36 We do not assign students to schools in ways that make
them more diverse.37 We do not distribute funds or teachers
equitably. 38 Rather than adopt policies that would cause education
tides to rise in a way that would lift all boats, states and the federal
government adopt policies that protect and entrench a status quo.
Privileged communities largely pursue education on their own
and others are left with education reforms that rearrange deck
chairs.
32. See, e.g., Michael Leachman et al., Most States Have Cut School Funding, and
Some Continue Cutting, CTR. BUDGET & POL’Y PRIORITIES (Jan. 25, 2016),
https://www.cbpp.org/research/state-budget-and-tax/most-states-have-cut-school-fundingand-some-continue-cutting [https://perma.cc/64V3-B7Q7].
33. See generally BRUCE D. BAKER, IS SCHOOL FUNDING FAIR? A NATIONAL
REPORT CARD 1 (4th ed. 2015).
34. See, e.g., GARY ORFIELD ET AL., BROWN AT 62: SCHOOL SEGREGATION BY RACE,
POVERTY AND STATE 3 fig.2 (2016), https://escholarship.org /uc/item/5ds6k0rd
[https://perma.cc/AC73-6RZC] (“. . . African American and Latino students are increasingly
isolated, often severely so.”).
35. See, e.g., Frank Adamson & Linda Darling-Hammond, Funding Disparities and
the Inequitable Distribution of Teachers: Evaluating Sources and Solutions, 20 EDUC. P OL’Y
ANALYSIS ARCHIVES 1 (Nov. 19, 2012); Wendy Parker, Desegregating Teachers, 86 WASH.
U. L. REV. 1 (2008).
36. See generally BRUCE D. BAKER ET AL., THE REAL SHAME OF A NATION: THE
CAUSES AND CONSEQUENCES OF INTERSTATE INEQUITY IN PUBLIC SCHOOL INVESTMENTS
1
(Apr.
2,
2018),
https://drive.google.com/
file/d/1cm6Jkm6ktUT3SQplzDFjJIy3G3iLWOtJ/view [https://perma.cc/GW45-NKU4].
37. See Alvin Chang, The Data Proves that School Segregation Is Getting Worse, VOX
(Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-gettingworse-data [https://perma.cc/9MZ6-LH6K].
38. See e.g., BAKER ET AL., supra note 33; Adamson & Darling-Hammond, supra note
35.
314
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Vol. 72:1
A RICH HISTORY OF EDUCATION GOALS
The last two decades of education reform is obscene because
we know better. We have been better. History proves that we
know the goals that the education system ought to aspire to.
History shows just how much we can achieve if we commit
ourselves to meaningful goals. These goals are much bigger than
the types of tests we administer, the types of books and curricula
we buy, or the way we evaluate teachers. But none of this is to
suggest public schools have ever fully lived up to any of our
goals—or rather that we have been willing to live up to our
commitments to public schools. They—we—have not.
Resistance, even to our best ideas, has always existed.
Resistance does not fade away just by ensconcing goals in
constitutions, Supreme Court decisions, or legal codes. The story
of public education is really a story of struggling to live up to our
highest ideas. The difference between the past and present is not
our failures. We have failed too often to try to make that
distinction. The difference is in the height of our education goals
and the depth of the norms that those goals were meant to unseat.
Take the very founding of our nation—an experiment away
from autocratic and elite rule toward a democracy accountable to
common citizens. To succeed, those exercising political power
needed to be informed well enough to make smart decisions. 39
Our founders—the people who wrote the federal and state
constitutions under which we live—firmly believed the only
solution was to make sure the country had public schools that
cultivate the skills that citizens need to participate in democracy. 40
At each major turning point in our nation’s development, the
founders and leaders who followed them set education goals and
took concrete steps to achieve them.
In the earliest years of the Republic, people like George
Washington, John Adams, and Thomas Jefferson made
impassioned pleas for the young nation to support public
education. John Adams, in fact, authored the Massachusetts
constitution and put our nation’s first education clause in it before
39. See Derek W. Black, The Fundamental Right to Education, 94 NOTRE DAME L.
REV. 1059, 1082–83 (2019).
40. See id. at 4.
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BREAKING THE NORM
315
the nation even penned the U.S. Constitution. 41
The
Massachusetts Constitution explained, or warned, that “[w]isdom
and knowledge . . . diffused generally among the body of the
people [are] necessary for the preservation of their rights and
liberties . . . .”42 Thus, it declared that “it shall be the duty of
legislatures and magistrates, in all future periods of this
commonwealth, to cherish the . . . public schools . . . .”43 As
president, Washington and Jefferson both specifically called on
the nation to invest in public education.44 Its success, and that of
the nation, were intertwined. In an annual address to Congress,
President Jefferson actually argued that education was so
important to the nation that Congress should, if necessary, amend
the United States Constitution to allow for further support of
education. 45
The goal was simple: to make educational opportunity as
quickly and widely available as possible. At the time, public
education, as we think of it, was largely unknown to the nation.
Education was primarily a private or community affair with very
little, if any, formal state involvement. 46 A system of public
education simply did not exist.
The most salient national response to the problem was the
Northwest Ordinances of 1785 and 1787.47 Before the nation had
even adopted the U.S. Constitution, these foundational laws
41. See John Adams & the Massachusetts Constitution, COMMONWEALTH OF
MASSACHUSETTS,
https://www.mass.gov/guides/john-adams-the-massachusettsconstitution#john-adams-drafts-the-massachusetts-constitution
[https://perma.cc/4H8B3HV8] (last visited Mar. 7, 2019).
42. MASS. CONST. of 1780, pt. II, ch. V, § 2.
43. Id.
44. Eighth Annual Message of George Washington (Dec. 7, 1796), LILLIAN GOLDMAN
LAW
LIBRARY,
http://avalon.law.yale.edu/18th_century/washs08.asp
[https://perma.cc/563Z-LRKD].
45. Thomas Jefferson, Sixth Annual Message to Congress (Dec. 2, 1806), LILLIAN
GOLDMAN LAW LIBRARY, http://avalon.law.yale.edu/19th_century/ jeffmes6.asp
[https://perma.cc/A9U5-MNVA].
46. See generally JOHANN N. NEEM, DEMOCRACY ’S SCHOOLS: THE RISE OF PUBLIC
EDUCATION IN AMERICA 2 (2017).
47. See An Ordinance for the Government of the Territory of the United States
Northwest
of
the
River
Ohio
(July
13,
1787),
available
at
https://www.ourdocuments.gov/doc.php?flash=false&doc=8&page=transcript
[https://perma.cc/2RTP-H8U4] [hereinafter Land Ordinance of 1787]; An Ordinance for
Ascertaining the Mode of Disposing of Lands in the Western Territory (May 20, 1785),
reprinted in 28 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 375–81 (John
C. Fitzpatrick ed., 1933) [hereinafter Land Ordinance of 1785].
316
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established the rules for dividing up and developing the nation’s
vast territories and eventually recognizing them as new states.
The Northwest Ordinances broadly announced that “schools and
the means of education shall forever be encouraged” and
specified that every new town would set aside one-ninth of its
land and one-third of its natural resources for the financial support
of public education. 48 And every town would reserve one of its
lots for the operation of a public school. Congress even specified
the precise lot for the construction of schools. In towns divided
up into 36 equal-sized squares, four lots touched the exact center
of town.49 One of these was lot 16—the one on which towns were
to build their schools.50
This plan was not without flaw. Territories and states
mismanaged these land grants in many instances, and even when
they did not, the land did not generate the resources necessary to
operate the schools.51 Notwithstanding these limitations and
failures, the story of public education’s development in these
early years is incredibly impressive. The overall commitment and
effort in education paid off in ways that would have been hard to
predict for a fledging nation. The proof is in the pudding. By the
mid-1800s, only Prussia enrolled a higher percentage of students
in school than the United States.52 In the North and Midwest, for
instance, school enrollment rates in urban areas that had once
been well below 50 percent had risen to 85 to 90 percent. 53 And
this growth was accompanied by a transition from private to
public education. As Carl Kaestle summarized, “Private schools
[became] more rare . . . and [c]hildren who earlier might have
gone to less expensive pay schools now went to public schools.”54
Yet even while these public schools expanded, the nation
was failing to live up to the democratic ideas that these school
systems were meant to serve. Throughout the first half of the
48. Land Ordinance of 1787, supra note 47; Land Ordinance of 1785, supra note 47,
at 378.
49. Land Ordinance of 1785, supra note 47, at 376, 378.
50. Id. at 378.
51. CARL F. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND
AMERICAN SOCIETY, 1780–1860, at 183–85 (1983).
52. Sun Go & Peter Lindert, The Uneven Rise of American Public Schools to 1850, 70
J. ECON. HIST. 1, 3 (2010).
53. KAESTLE, supra note 51, at 106.
54. Id. at 220.
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BREAKING THE NORM
317
nineteenth century, the nation still excluded a lot of people from
the most basic rights of citizenship. For instance, women and
people with land were still excluded from the ballot box. Southern
states still held millions of African Americans in slavery.
Teaching African Americans to read and write in the South was a
crime.55 Access to formal schooling and the ballot box were not
even faint dreams. But even poor whites had limited access to
public school in the South.56 Southern elites saw public education
a challenge to their way of life and political power. 57
The Civil War brought the tension between reality and our
democratic ideas to a head and marked the second major period
of educational goal setting. The South, and many other states for
that matter, were not operating as real democracies. At the close
of the Civil War, Congress needed to bring millions of new people
into our democracy and rebuild the nation, what we might call our
nation’s second founding. A key ingredient, just as it had been at
the nation’s first founding, was public education.
Congress told Southern states that if they were going to
reenter the Union, they had to get serious about democracy. 58
This meant extending the right to vote to African Americans and
radically expanding their public education systems. 59 This time
education was not just to be encouraged; it was to be
constitutionally guaranteed.60 All of the Southern states still
seeking readmission after the War amended their state
constitutions to mandate the provision of public education. 61 This
created an irony, as some Northern states did not guarantee
education in their constitutions, but they would follow the South’s
55. Jenny Bourne Wahl, Legal Constraints on Slave Masters: The Problem of Social
Cost, 41 AM. J. LEGAL HIST. 1, 17 n.51 (1997).
56. In 1853, North Carolina enrolled less than half of eligible children, which did not
include African Americans, and by the end of the war the “rudimentary Southern school
systems disintegrated.” WILLIAM PRESTON VAUGHN, SCHOOLS FOR ALL: THE BLACKS &
PUBLIC EDUCATION IN THE SOUTH, 1865–1877, at 51–52 (1974).
57. See generally Susan P. Leviton & Matthew H. Joseph, An Adequate Education for
All Maryland’s Children: Morally Right, Economically Necessary, and Constitutionally
Required, 52 MD. L. REV. 1137, 1155 (1993); WYTHE HOLT, VIRGINIA’S CONSTITUTIONAL
CONVENTION OF 1902, at 254 (1990) (describing the Virginia elite’s perception of the state’s
Reconstruction-era constitution as threatening and dangerous).
58. Derek W. Black, The Constitutional Compromise to Guarantee Education, 70
STANFORD L. REV. 735, 742 (2018).
59. Id. at 742–43.
60. Id. at 743.
61. Id.
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lead in the coming years. 62 In fact, following the Civil War, no
state would ever again enter the Union without a provision in their
state constitution mandating public education.
These state constitutions provided for a new radical set of
norms—norms that were designed to resolve the shortcomings of
the prior era. States constitutionalized their common school
funds, ensuring that those resources would be spent only on
schools.63 Other states were even more specific, setting a precise
floor for education funding and requiring that education be
funded prior to anything else.64 State constitutions also spoke to
the structure and governance of schools, requiring that the system
of schools be uniform and administered by state superintendents
and school board members whose authority is not subject to the
normal political process.65 The schools were also to be “open to
all”—an antidiscrimination concept—and provide some
particular quality of education.66
62. Id. at 790.
63. See, e.g., ALA. CONST. of 1868, art. XI, § 10 (1863) (providing that proceeds from
new and old state lands would be funneled into a “perpetual fund, which may be increased
but not diminished, and the interest and income of which” along with other funding sources
would “be inviolably appropriated to educational purposes”); see also JOHN MATHIASON
MATZEN, STATE CONSTITUTIONAL PROVISIONS FOR EDUCATION: FUNDAMENTAL
ATTITUDE OF THE AMERICAN PEOPLE REGARDING EDUCATION AS REVEALED BY STATE
CONSTITUTIONAL PROVISIONS, 1776–1929, at 129–39 (1931) (identifying common school
funds in state constitutions).
64. See, e.g., PENN. CONST. of 1874, art. X, § 1 (1874) (setting aside “at least one
million dollars each year” for public schools).
65. FLA. CONST. of 1868, art. VIII, § 3 (1868) (establishing a state superintendent of
public education); N.C. CONST. of 1868, art. IX, §§ 7–15 (1868) (establishing and detailing
the operation of a state board of education); see also MATZEN, supra note 63, at 5–12 tbl. II,
13–14, 37–51 tbl. VIII, 52–53.
66. ALA. CONST. of 1868, art. XI, § 6 (1868) (establishing education for “all the
children of the State”); ARK. CONST. of 1868, art. IX, § 1 (1868) (requiring the state
legislature to “establish and maintain a system of free schools, for the gratuitous instruction
of all persons in this State” of suitable age); FLA. CONST. of 1868, art. VIII, § 1 (1868)
(obligating the state to “provi[de] for the education of all the children residing within its
borders”); GA. CONST. of 1868, art. VI, § 1 (1868) (mandating that public education “be
forever free to all children of the State”); LA. CONST. of 1868, tit. VII, art. 135 (1868) (“[a]ll
children of this State [of suitable age] shall be admitted to the public schools . . . without
distinction of race . . . .”); N.C. CONST. of 1868, art. IX, § 2 (1868) (mandating an education
system “free of charge to all the children of the State”); S.C. CONST. of 1868, art. X, § 4
(1868) (requiring the state legislature to provide for compulsory education of “all children”).
Senator Sumner had earlier argued for this provision in the U.S. Senate to ensure integrated
schools. CONG. GLOBE, 40th Cong., 1st Sess. 165 (1867) (statement of Sen. Sumner)
(suggesting an amendment to require that states “establish and sustain a system of public
schools open to all”). South Carolina delegates also understood the phrase to be anti-
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319
These constitutional commitments propelled another bold,
yet imperfect, era in public education. Public schooling expanded
and improved in quality. 67 The failures arose not due to flawed
goals, but because many people continued to contest the more
inclusive form of democracy the schools were intended to secure.
In fact, these detractors would eventually regain political power
and use public education as a tool for retracting democracy. 68
Segregation would show its most pernicious face in the public
schools, as they became both a practical and symbolic centerpiece
of African Americans’ second-class citizenship. 69 Later, curing
that second-class citizenship would then necessarily involve an
education movement and set of progressive goals.
A century after the Civil War, public education once again
served as the locus of our nation’s second democratic
reconstruction. The Court’s opinion on Brown v. Board of
Education70 offers a poignant explanation. The Court wrote that
it would not “turn the clock back to 1868 when the [Fourteenth]
Amendment was adopted, or even to 1896 when Plessy v.
Ferguson” validated the notion of separate but equal. 71 But the
Court would “consider public education in the light of its full
development and its present place in American life throughout the
Nation.”72 Through that lens, the Court wrote that:
education is perhaps the most important function of state and
local governments. Compulsory school attendance laws and
the great expenditures for education both demonstrate our
recognition of the importance of education to our democratic
discriminatory. James Lowell Underwood, African American Founding Fathers: The
Making of the South Carolina Constitution of 1868, in AT FREEDOM ’S DOOR: AFRICAN
AMERICAN FOUNDING FATHERS AND LAWYERS IN RECONSTRUCTION SOUTH CAROLINA 1,
13–15 (James Lowell Underwood & W. Lewis Burke Jr. eds., 2000).
67. See generally Derek W. Black, Education’s Elusive Future, Storied Past, and the
Fundamental Inequities Between, 46 GA. L. REV. 557 (2012).
68. See generally DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF
EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 12–13 (2004) (indicating
the purpose of school segregation was not just to segregate but to subordinate); MICHAEL J.
KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE
FOR RACIAL EQUALITY 24–25 (2004) (explaining the importance of school segregation
relative to other forms of segregation and the lengths states went to enforce it).
69. Joe R. Feagin, Heeding Black Voices: The Court, Brown, and Challenges in
Building a Multiracial Democracy, 66 U. PITT. L. REV. 57, 68 (2004).
70. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
71. Id. at 691.
72. Id.
320
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society. It is required in the performance of our most basic
public responsibilities, even service in the armed forces. It
is the very foundation of good citizenship. 73
Thus, the Court flatly declared that education, “where the
state has undertaken to provide it, is a right which must be made
available to all on equal terms.” 74
The idea of racially equitable and integrated schooling was
so bold that it took another full decade before the federal
government or the states would begin to implement it in any
meaningful way. 75 Even then, school integration posed such a
challenge to the status quo that a backlash ensued in the 1970s.76
That backlash is a story unto itself and well-told by countless
others. Less studied is the interesting turn that the right to
education took following Brown. Brown’s recognition of
education as a foundational governmental function in our
democracy helped spawn an independent movement to secure a
formal constitutional right to education.77 Such a right would
draw upon our original commitments to public education and
transcend race.
As school desegregation doctrine confronted increasing
limitations in the 1970s, civil rights advocates began revisiting
the meaning and purpose of the state educational clauses that
states had first enacted in the 1860s. Advocates read those state
constitutional clauses as imposing an absolute duty on legislatures
to create and manage school systems that prepared all students for
their future roles as citizens and employees. 78 Early litigation
efforts were met with mixed results, but plaintiffs’ victories
mounted in the late 1980s and 1990s.79 By the 2000s, a strong
majority of state supreme courts had validated plaintiffs’
theories. 80
73.
74.
75.
76.
77.
78.
Id.
Id.
See BELL, supra note 68.
Id. at 111–12.
Id. at 113.
See MICHAEL A. REBELL, FLUNKING DEMOCRACY : SCHOOLS, COURT, AND CIVIC
PARTICIPATION 50–68 (2018).
79. Michael A. Rebell, Poverty, “Meaningful” Educational Opportunity, and the
Necessary Role of the Courts, 85 N.C. L. REV. 1467, 1500 (2007).
80. Id.
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321
These cases represent the full flowering of the ideas first
planted more than a century earlier. While the various cases and
court opinions have their idiosyncrasies, they all rest on the same
basic principles—principles on which egalitarian democratic
education systems must stand. First, these cases reaffirm the
principle that the educational opportunities students receive
cannot be a function of the place in which they happen to live.
Contrary to conventional wisdom, public education is not a
function of local government. It is a duty of the state.81
Second, the cases demonstrate that constitutional education
clauses make states’ education duty an absolute one.82 They have
no choice but to establish and maintain a public education system.
Moreover, that duty precedes the states’ other policy agendas. 83
States cannot treat education as the bill it pays after it takes care
of its other pet projects. State constitutions may afford
legislatures deference on any number of practical education
decisions, but some decisions are simply off limits. States cannot,
for instance, choose to transform the public education system into
a private one, spend public education money on bridges and
roads, or leave education to the varied capacities of school
districts.84 It is the state’s obligation—and no one else’s—to
ensure public education for its citizens. In short, education does
81. See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 205 (1989).
82. See, e.g., N.C. CONST. art. I, § 15 (1971) (“The people have a right to the privilege
of education, and it is the duty of the State to guard and maintain that right.”); R.I. CONST.
art. XII, § 1 (1986) (“The diffusion of knowledge . . . being essential to the preservation of
[the people’s] rights and liberties, it shall be the duty of the general assembly to promote
public schools . . . and to adopt all means which it may deem necessary and proper to secure
to the people the advantages and opportunities of education.”).
83. GA. CONST. art. VIII, § 1, para. I (1983) (“primary obligation of the State of
Georgia”); FLA. CONST. art. IX, § 1 (1968) (“paramount duty of the state to make adequate
provision for the education of all children residing within its borders”); Seattle Sch. Dist. No.
1 of King Cty. v. State, 585 P.2d 71, 91 (Wash. 1978) (en banc) (“By imposing upon the
State a paramount duty to make ample provision for the education of all children residing
within the State’s borders, the constitution has created a ‘duty’ that is supreme, preeminent
or dominant.”) (footnote omitted); Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1257,
1259 (Wyo. 1995) (“By establishing education first as a right in the Declaration of Rights
article and then detailing specific requirements in a separate Education article in the state
constitution, the framers and ratifiers ensured, protected and defined a long cherished
principle[]” that “was viewed as a means of survival for the democratic principles of the
state.”).
84. See Derek W. Black, Preferencing Choice: The Constitutional Limits, 103
CORNELL L. REV. 1359 (2018).
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not stand on equal footing with other government priorities. It
stands above them.
Third, these cases demonstrate that state constitutional
education clauses operate as a check on states. The constitutional
rights and duties that these education clauses create allow
students to seek help from an independent judiciary when states
fail to do their job in education. Without this right, nothing
restrains states from allowing politics rather than student needs to
dictate education policy.
As I survey these three major periods in time—our founding,
Reconstruction, and the modern civil rights era—I cannot find a
flaw in the goals they set. The goals required evolution over time,
but they revolved around ideas that are as true today as they were
back then: the legitimacy of our government rests on the provision
of public education; public education must be the first priority of
government; public schools must be uniformly and equally open
to all; public schools must reflect our democratic values—the
type of society we want—not our individual interests and biases;
and public schools must provide students with the knowledge and
skills they need to participate in democracy and succeed in life.
Conclusion
Equal educational opportunity makes straightforward
demands. We know what kids need: quality teachers, diverse
environments, and appropriate learning supports.85 Rather than
seriously committing to providing these things, we change the
way we measure achievement, teachers, and curriculum, as
though changing from a U.S. standard to metric ruler will change
the length of the stick we hold in our hands. If constant education
reform has shown us anything, it is that changing the ruler or
putting it in someone else’s hand will not change educational
opportunity in a positive way. In some respects, these changes
just make matters worse as some states and schools try to stretch
the stick or, when they do not, parents desert some schools and
flock to others because they believe the new measurements are
meaningful.
85. See generally LINDA DARLING-HAMMOND, THE FLAT WORLD AND EDUCATION :
HOW AMERICA’S COMMITMENT TO EQUITY WILL DETERMINE OUR FUTURE (2010).
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BREAKING THE NORM
323
Rather than coming up with another round of “reforms,” we
must honestly assess the norms we need to break. Until we break
our problematic norms—norms with which we have become all
too comfortable—we will reform ourselves into oblivion and our
schools will not see much improvement. We need to break at
least three norms. First, we have to end the practice of locally
funding schools. This norm may have had some genesis in local
control,86 but it stopped being about local control long ago.87 It
is about advantaging those communities that do not need state
support and leaving the rest behind. Second, we have to stop
replicating racial and socioeconomic isolation in our public
schools. The idea of public schools has always been one that
aspires to our better instincts, not one that settles for our worst
ones.
Sorting students into homogenous racial and
socioeconomic enclaves incentivizes intergroup competition in
which every school district and school fights only for its own
well-being.88 When this happens, we lose the common good that
makes public schools public.
Those norms have a long history and breaking them will not
be easy, but the task will be easier if we break the newfound norm
of viewing schools through the lens of their test scores. Test
scores are the lifeblood of researchers and somewhat useful to
well-informed teachers. But they are dangerous in the hands of
most everyone else. They do not appreciate what the scores really
mean, but they act on them anyway. They believe they must
exclude students who might damage their school’s scores (and
racial demographics),89 that schools with lower scores are
necessarily bad schools, 90 and that money spent on these latter
86. See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49 (1973).
87. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 154–56 (Tenn. 1993)
(rejecting local control as a justification for funding inequities and summarizing other courts
that reach the same conclusion).
88. Erika K. Wilson, The New School Segregation, 102 CORNELL L. REV. 139, 195
(2016).
89. See, e.g., Jack Dougherty et al., School Choice in Suburbia: Test Scores, Race,
and Housing Markets, 115 AM. J. EDUC. 523 (2009); Wilson, supra note 88, at 195
(“[D]ecentralization through localism allows the state to do implicitly what it cannot do
explicitly for both legal and political reasons: divide and allocate public education resources
on the basis of race and class.”).
90. Jack Schneider, The Urban-School Stigma, THE ATLANTIC (Aug. 25, 2017).
324
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schools is wasted.91 And if we can accept these very simple
premises about test scores, we would suddenly realize just how
misguided the recent decades of reform have been and how much
we need to focus our efforts on those more meaningful aspects of
unequal educational opportunity that we have come to accept.
91. BENJAMIN SCAFIDI, EDCHOICE, BACK TO THE STAFFING SURGE: THE GREAT
TEACHER SALARY STAGNATION AND THE DECADES-LONG EMPLOYMENT GROWTH IN
AMERICAN
PUBLIC
SCHOOLS
(May
2017),
https://www.
edchoice.org/wp-content/uploads/2017/05/Back-to-the-Staffing-Surge-by-Ben-Scafidi.pdf
[https://perma.cc/DHT7-JT4J] (arguing that increases in teacher staff were a waste); Ethan
W. Blevins, Public Schools Need Reform, Not More Money, PACIFIC LEGAL FOUNDATION
(Jan.
25,
2017),

Public schools need reform, not more money

[https://perma.cc/EA3X-FEWM]; Kayla Lattimore, DeVos Says More Money Won’t Help
Schools;
Research
Says
Otherwise,
NPRED
(June
9,
2017),
https://www.npr.org/sections/ed/2017/06/09/531908094/devos-says-more-money-wonthelp-schools-research-says-otherwise [https://perma.cc/3LVA-HG86].
BYU Law Review
Volume 2019
Issue 3
Article 9
Spring 5-27-2020
School to Students: Post That, and You Won’t Play
Ashley Waddoups
Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview
Part of the Law Commons
Recommended Citation
Ashley Waddoups, School to Students: Post That, and You Won’t Play, 2019 BYU L. Rev. 837 (2020).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2019/iss3/9
This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law
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Schools to Students: Post That, and You Won’t Play
When Schools Condition Students’ Participation
in Extracurricular Activities
on “Appropriate” Social Media Use
INTRODUCTION ……………………………………………………………………………………. 838
I. OVERVIEW OF SPEECH RIGHTS
FOR S TUDENTS IN E XTRACURRICULARS ………………………………………….. 841
A. Supreme Court Jurisprudence ……………………………………………………….. 841
1. Tinker v. Des Moines Independent
Community School District ……………………………………………………… 841
2. Bethel School District No. 403 v. Fraser ………………………………………. 842
3. Hazelwood School District v. Kuhlmeier ………………………………………. 843
4. Morse v. Frederick …………………………………………………………………….. 844
B. Unclear Precedent and Conflicting Applications by Lower Courts … 844
1. Layshock ex rel. Layshock v. Hermitage School District …………………. 845
2. Doninger v. Niehoff …………………………………………………………………… 847
3. The irreconcilable rationales in Layshock and Doninger ……………. 849
C. Conflicts in the Extracurricular Context …………………………………………. 850
1. B.L. ex rel. Levy v. Mahanoy Area School District ………………………… 851
2. Johnson v. Cache County School District……………………………………… 852
3. The irreconcilable outcomes of B.L. and Johnson ……………………… 855
II. INSUFFICIENT CURRENT APPROACHES
FOR E XTRACURRICULAR ACTIVITIES ………………………………………………. 855
A. Approach #1: Schools Can Create Higher Standards
for Students that Participate in Extracurricular Activities. ………….. 856
B. Approach #2: Generous Application of the Tinker Standard …………… 862
III. A MODIFIED STANDARD TO BALANCE STUDENT
AND S CHOOL R IGHTS …………………………………………………………………. 866
A. Modified Tinker Standard ………………………………………………………………. 866
1. Unambiguous notice ……………………………………………………………….. 867
2. Clear connection standard ………………………………………………………. 869
3. Rebuttable presumption against one-time infractions causing
substantial disruption…………………………………………………………… 870
4. Tinker, specifically applied to extracurriculars ………………………… 872
CONCLUSION ………………………………………………………………………………………. 873
837
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2019
INTRODUCTION
One Snapchat post later, and high school student S.J. was
informed that her post had cost her the chance to be a member of
her school’s cheer squad.1 Likewise, one blog post later, high school
student Avery Doninger was informed that she could no longer run
for student government.2 In yet another case, after creating a
“parody profile” of his principal on Myspace, high school student
Justin Layshock was informed that, among other punishments, he
was banned from all extracurricular activities.3 These cases and
others beg the question, should schools be allowed to bar students
from participation in extracurricular activities on the basis of
students’ online, off-campus speech?
The importance of this question is magnified by pervasive
social media use by youth. One study found that the average age
children start signing up for social media accounts is 12.6 years.4
And, for children ages thirteen to eighteen, 80% have social media
accounts.5 This number can only be expected to increase, especially
as companies such as Facebook create kid-targeted programs.6
However, despite the increasing relevance of this issue, the
United States Supreme Court has yet to provide much-needed
guidance to lower courts on how to handle cases regarding
students’ off-campus, online speech. While the Supreme Court has
ruled on a number of student-speech cases, these cases are limited
to instances where the students’ speech occurred either oncampus,7 at a school-sponsored event,8 or through schoolsponsored publications.9 Thus, the exact scope and appropriate
1. Johnson v. Cache Cty. Sch. Dist., 323 F. Supp. 3d 1301, 1308–10 (D. Utah 2018).
2. Doninger v. Niehoff, 642 F.3d 334, 339–42 (2d Cir. 2011).
3. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 207, 210 (3d Cir.
2011) (en banc).
4. Jacqueline Howard, What’s the Average Age When Kids Get a Social Media Account?,
CNN (June 22, 2018, 10:22 AM), https://www.cnn.com/2018/06/22/health/social-mediafor-kids-parent-curve/index.html.
5. Id.
6. See Daniel Trotta, Facebook Rolls Out Messenger App for Kids Under 13, REUTERS
(Dec. 4, 2017, 10:11 AM), https://www.reuters.com/article/us-facebook-messengerkids/facebook-rolls-out-messenger-app-for-kids-under-13-idUSKBN1DY28F.
7. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677 (1986); Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).
8. Morse v. Frederick, 551 U.S. 393, 396 (2007).
9. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262 (1988).
838
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Post That, and You Won’t Play
application of these Supreme Court cases remains unclear. As a
result, federal courts have floundered, reaching dramatically
different conclusions even when analyzing similar cases and
relying on the exact same legal tests.
Further, even in cases where students are participating in the
same extracurricular activity, using the same social media platform
to express their views, and expressing their views in similarly
offensive ways, courts have disagreed as to the merits of the
students’ cases.10 For example, in B.L. by Levy v. Mahanoy Area School
District, a cheerleader was dismissed from her team for sharing a
private snap that had a curse-word-laden caption because her
school considered the post to be disrespectful to her school and
cheer squad.11 Likewise, in another recent case, Johnson v. Cache
County School District, another cheerleader was dismissed from her
team for sharing a private snap that used four-letter words because
administration thought it violated the cheer squad’s rules about
“appropriate” social media use.12 Notwithstanding the significant
similarities in these cases, the reviewing courts came to radically
different conclusions.13 In B.L., the court ruled in favor of the
student;14 in Johnson, the court ruled in favor of the school.15 The
contradictory outcomes in these two cases represent the ongoing
confusion over how schools should deal with students’ off-campus
speech on social media. More specifically, these cases illustrate the
uncertainty schools face when they choose to hold students who
participate in extracurricular activities to higher speech standards
than their peers.
Analyzing these cases, scholars and commentators have argued
for a number of different, and often contradictory, principles that
should guide courts’ decisions on student speech.16 In general,
there has been significant disagreement over whether schools
should have power to control student speech in the first place.
Some have argued that “[s]tudents are entitled to all protections
10. Compare Johnson v. Cache Cty. Sch. Dist., 323 F. Supp. 3d 1301, 1307 (D. Utah
2018), with B.L. by Levy v. Mahanoy Area Sch. Dist., 289 F. Supp. 3d 607 (M.D. Pa. 2017).
11. 289 F. Supp. 3d at 610.
12. 323 F. Supp. 3d at 1308–10.
13. See id. at 1324; B.L., 289 F. Supp. 3d at 616.
14. B.L., 289 F. Supp. 3d at 616.
15. Johnson, 323 F. Supp. 3d at 1324.
16. See sources cited infra notes 17–19.
839
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afforded by the Constitution, and schools do not have a right to
regulate, restrict, and/or punish their students for behavior that
would normally be constitutionally protected, no matter how
offensive or controversial the expression.”17
In contrast, some have argued that schools should have the
authority to regulate students’ online, off-campus speech but have
differed as to what legal standard courts and schools should rely
on.18 Others have declined to argue for a specific legal standard, but
have advised that if students are going to be punished under any
Supreme Court precedent, they must be afforded greater speech
protections.19
In terms of student speech specific to the extracurricular
context, the opinions have been just as wide-ranging. One
commentator has argued that certain Supreme Court precedents
should be disposed of entirely and, instead, courts should simply
recognize the already “well-established limitations on the conduct
of a student that participates in extracurricular activities.”20 In
contrast, another commentator has argued that “conditioning
participation on giving up speech rights contradicts the educational
goals of extracurricular activities and of public schools[,]” and that
schools should only be able to punish student speech if there is a
connection between the speech restriction and the “educational
goal” of the extracurricular activity.21
The problem with most of these proposed standards is that, in
practical effect, they force courts to choose between prioritizing
student speech or prioritizing the management and efficiency of
schools at a categorical level. Additionally, some of the proposed
approaches only advocate for broad Supreme Court standards that
17. Maiya Dempsey, Note, Easy to Say, Easy to See: Social Media and the Constitutional
Rights of Public School Students, 17 WHITTIER J. CHILD & FAM. ADVOC. 82, 84 (2018).
18. Compare Jessica K. Boyd, Note, Moving the Bully from the Schoolyard to Cyberspace:
How Much Protection Is Off-Campus Student Speech Awarded Under the First Amendment?, 64
ALA. L. REV. 1215, 1217 (2013); Brittany L. Kaspar, Note, Beyond the Schoolhouse Gate: Should
Schools Have the Authority to Punish Online Student Speech?, 88 CHI.-KENT L. REV. 187 (2012).
19. See Emily Gold Waldman, Regulating Student Speech: Suppression Versus
Punishment, 85 IND. L.J. 1113, 1136 (2010).
20. Travis Miller, Note, Doninger v. Niehoff: Taking Tinker Too Far, 5 LIBERTY U. L.
REV. 303, 330 (2011).
21. Rebecca L. Zeidel, Note, Forecasting Disruption, Forfeiting Speech: Restrictions on
Student Speech in Extracurricular Activities, 53 B.C. L. REV. 303, 342–43 (2012).
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are not sufficiently tailored to the unique concerns presented by
these types of student speech cases.
In response, this Note offers a new approach that provides
sufficient protection for students’ rights in the extracurricular
context, while also ensuring that schools have the necessary leeway
to regulate harmful student speech. Part I of this Note provides an
overview of Supreme Court precedent in student speech cases and
how lower courts have struggled to apply this precedent when
student speech occurs online and off-campus. Next, Part II analyzes
two common, competing approaches courts currently rely on to
analyze and resolve this legal ambiguity. This Part then discusses
why these approaches, at least applied in isolation, are inadequate
because both approaches fail to sufficiently protect students’
interests. Finally, Part III of this Note proposes what I will refer to
as the Modified Tinker Standard. This approach provides key
protections to students, while also ensuring that administrators and
coaches can effectively manage their schools’ extracurricular
programs.
I. OVERVIEW OF SPEECH RIGHTS
FOR STUDENTS IN EXTRACURRICULARS
The Supreme Court has declared that students do not “shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”22 At the same time, however, the Court has
acknowledged that “the constitutional rights of students in public
school are not automatically coextensive with the rights of adults in
other settings.”23 Thus, in student speech cases, the Court has
sought to draw a careful balance between protecting students’
rights and protecting the efficiency and effectiveness of schools.
A. Supreme Court Jurisprudence
1. Tinker v. Des Moines Independent Community School District
The first major student speech case brought before the Court
was Tinker v. Des Moines Independent Community School District.24 In
22. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
23. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1982) (citation omitted).
24. Tinker, 393 U.S. 503.
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Tinker, three students wore black armbands to school to show their
disapproval of the Vietnam War.25 In response, the school district
suspended the students until they were willing to come back to
school without wearing their armbands.26
Upon review, the Court concluded that schools can punish
students for their speech, but only if the students’ speech
“materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school.”27 According
to the Court, this substantial disruption test was the appropriate
standard because it ensured that students’ rights to free speech
were appropriately balanced against schools’ valid need to
occasionally limit student speech.28
The Court explained, however, that this standard does not
mean that schools need to wait until a disruption has actually
occurred before taking action; but rather, “undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to
freedom of expression.”29 Based on this standard, the Court ruled
in favor of the students because they “neither interrupted school
activities nor sought to intrude in the school affairs or the lives of
others.”30
2. Bethel School District No. 403 v. Fraser
Twenty years later, the Court confronted its next student speech
case in Bethel School District No. 403 v. Fraser.31 In Fraser, high school
student Matthew Fraser delivered a student government
nomination speech that constituted an “elaborate, graphic, and
explicit sexual metaphor” at his school’s assembly.32 As a result,
Fraser was suspended for three days, and he was disallowed from
speaking at the school’s commencement exercises.33
When the Court reviewed the case, rather than rely on Tinker’s
substantial disruption test, it created a different standard specific to
25.
26.
27.
28.
29.
30.
31.
32.
33.
842
Id. at 504.
Id.
Id. at 509 (quoting Burnside v. Byars, 353 F.2d 744, 749 (5th Cir. 1966)).
See id. at 511.
Id. at 508.
Id. at 514.
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1982).
Id. at 678.
Id.
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the facts of Fraser.34 Ultimately, the Court concluded, “it is a highly
appropriate function of public school education to prohibit the use
of vulgar and offensive terms in public discourse.”35 Thus, “[t]he
First Amendment does not prevent the school officials from
determining that to permit a vulgar and lewd speech such as
respondent’s would undermine the school’s basic educational
mission. A high school assembly or classroom is no place for a
sexually explicit monologue . . . .”36 Therefore, the Court upheld the
school’s decision to punish Fraser for his speech.37
3. Hazelwood School District v. Kuhlmeier
Shortly after Fraser came Hazelwood School District v. Kuhlmeier.38
In Hazelwood, three students alleged that their high school principal
violated their First Amendment rights when he deleted articles that
discussed controversial topics, such as teen pregnancy, from an
issue of the school newspaper.39 The question before the Court was
whether schools had “authority over school-sponsored
publications, theatrical productions, and other expressive activities
that students, parents, and members of the public might reasonably
perceive to bear the imprimatur of the school.”40 In answer, the
Court responded that schools have authority to refuse student
speech that might reasonably be perceived to be inconsistent with
“the shared values of a civilized social order.”41 Otherwise, schools
would be unable to adequately fulfill their key role in “awakening
the child to cultural values, in preparing [the student] for later
professional training, and in helping [the student] adjust normally
to his [or her] environment.”42 Thus, the Court ruled in favor of the
school, and held, “educators do not offend the First Amendment by
exercising editorial control over the style and content of student
speech in school-sponsored expressive activities so long as their
34.
35.
36.
37.
38.
39.
40.
41.
42.
See id. at 680–81.
Id. at 683.
Id. at 685.
Id. at 686.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
Id. at 262–63.
Id. at 271.
Id. at 272 (quoting Fraser, 478 U.S. at 683).
Id. (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
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actions are
concerns.”43
reasonably
related
to
2019
legitimate
pedagogical
4. Morse v. Frederick
Finally, and most recently, in Morse v. Frederick, students at a
school-sponsored event unfurled a banner that stated, “BONG
HiTS 4 JESUS.”44 To the principal, this banner promoted illegal
drug use. When one of the students refused to take down the
banner, he was suspended.45
As in Fraser, the Court in Morse affirmed the right of schools to
control student speech when students are in their school’s
custody.46 And, in Morse, although the students were not on school
campus, the banner was unfurled during normal school hours,
during a school-sanctioned trip.47 Thus, the Court concluded, “a
principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably
viewed as promoting illegal drug use.”48
B. Unclear Precedent and Conflicting Applications by Lower Courts
Notwithstanding the insights provided by Supreme Court
precedent, the exact scope and application of these cases to
students’ online, off-campus speech is debatable. Aside from Morse,
which was brought before the Court in 2007, the other student
speech cases that the Court has reviewed were decided at a time
when the technological advancements accessible to most American
students today were unimaginable. And, even if the rules
established in Tinker, Fraser, Hazelwood, and Morse could be easily
transplanted into the context of students’ online speech, members
of the Court have repeatedly expressed reservation about wideranging application of the rules from these cases. For example, in
his concurrence in Fraser, Justice Brennan stated, “[i]f respondent
had given the same speech outside of the school environment, he
could not have been penalized simply because government officials
43.
44.
45.
46.
47.
48.
844
Id. at 273.
Morse v. Frederick, 551 U.S. 393, 397 (2007).
Id. at 398.
See id. at 397.
Id. at 400–01.
Id. at 403.
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considered his language to be inappropriate; the Court’s opinion
does not suggest otherwise.”49 Later, the majority in Hazelwood
appeared to validate Justice Brennan’s interpretation, stating, “[a]
school need not tolerate student speech that is inconsistent with its
‘basic educational mission’ even though the government could not
censor similar speech outside the school.”50 In Morse, the Court also took
care to word its holding in such a way that narrowed its
application: “The question thus becomes whether a principal may,
consistent with the First Amendment, restrict student speech at a
school event, when that speech is reasonably viewed as promoting illegal
drug use.”51
Thus, it is unclear how lower courts should apply Supreme
Court precedent, and where the rights of schools and students
stand. As Justice Thomas lamented in his concurrence in Morse, “I
am afraid that our jurisprudence now says that students have a
right to speak in schools except when they do not—a standard
continuously developed through litigation against local schools
and their administrators.”52
Although the lower courts have tried to faithfully apply
Supreme Court precedent, they have often come to contradictory
conclusions. And, although there are cases where the facts are
distinct enough to possibly justify such conflicting holdings, “even
identical facts would likely lead to contradictory rulings given the
circuits’ analyses on this issue.”53 For example, consider the
following two cases involving online, off-campus student speech:
1. Layshock ex rel. Layshock v. Hermitage School District
In Layshock, high school senior Justin Layshock used his
grandmother’s home computer to create a highly derogatory
Myspace “parody profile” of his school principal, Eric Trosch.54 For
example, Justin gave the following answers to Myspace’s “tell me
49. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 688 (1982) (Brennan, J., concurring)
(emphasis added) (citation omitted).
50. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (emphasis added)
(citation omitted).
51. Morse, 551 U.S. at 403 (emphasis added).
52. Id. at 418 (Thomas, J., concurring).
53. Mickey Lee Jett, Note, The Reach of the Schoolhouse Gate: The Fate of Tinker in the Age
of Digital Social Media, 61 CATH. U. L. REV. 895, 918 (2012).
54. Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 207–08 (2011).
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about yourself” section: “Birthday: too drunk to remember . . . In
the past month have you gone Skinny Dipping: big lake, not big
dick[.]”55 Justin also claimed that Principal Trosch belonged to a
club called “Steroids International,” and he listed Principal
Trosch’s interests as “Transgender, Appreciators of Alcoholic
Beverages.”56
This profile “‘spread like wildfire’ and . . . reached most, if not
all,” of the students at Justin’s high school.57 Inspired by Justin’s
post, three other students also created parody profiles, which
ended up being even more vulgar and offensive than Justin’s.58 As
a result of these profiles, computer programming classes had to be
cancelled and, for six days, student computer use was strictly
limited to the computer labs and library, where internet use could
be closely supervised.59 Once it was discovered that Justin was
responsible for the first Myspace profile, he was given a ten-day,
out-of-school suspension, placed in an Alternative Education
Program, banned from all extracurricular activities, and not
allowed to participate in his graduation ceremony.60
When Justin’s case made it to the Third Circuit, the court began
its analysis with a discussion of the Tinker standard.61 Importantly,
the court found it meaningful that the district court could not
“establish[] a sufficient nexus between Justin’s speech and a
substantial disruption of the school environment[.]”62 Thus, the
court concluded that Tinker did not apply to Justin’s case.63
Additionally, the court concluded that Fraser did not apply.64 Citing
to Morse, the court explained, “Fraser does not allow the School
District to punish Justin for expressive conduct which occurred
outside of the school context.”65
55.
56.
57.
58.
59.
60.
61.
62.
Id. at 208.
Id. (internal quotation marks omitted).
Id.
Id.
Id. at 209.
Id. at 210.
See id. at 211–12.
Id. at 214 (first alteration in original) (quoting Layshock v. Hermitage Sch. Dist.,
496 F. Supp. 2d 587, 600 (W.D. Pa. 2007)).
63. See id.
64. See id. at 219.
65. Id. (citing Morse v. Frederick, 551 U.S. 393, 404 (2007)).
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In reaching these conclusions, the court also evinced a strong
dislike for the idea that schools could monitor students’ online
speech.66 The court explained, “[i]t would be an unseemly and
dangerous precedent to allow the state, in the guise of school
authorities, to reach into a child’s home and control his/her actions
there to the same extent that it can control that child when he/she
participates in school sponsored activities.”67 Thus, the court ruled
in favor of Justin, and held that the school could not punish his
online, expressive conduct.68
2. Doninger v. Niehoff
In contrast, consider Doninger v. Niehoff.69 In Doninger, student
council member Avery Doninger expressed anger over the way her
school had handled an upcoming student event, Jamfest, on
livejournal.com.70 In her post, Avery referred to school
administrators as “douchebags” and encouraged students to
continue contacting Paula Schwartz, superintendent of the school
district, to complain about the alleged cancellation of the event.71
As Avery stated at the end of her post, “if you want to write
something or call her to piss her off more. im [sic] down.”72
Prior to Avery’s post, Jamfest had already been causing
problems between students and administrators.73 So, even though
administration was not aware of Avery’s post until about two
weeks later, it is unlikely that administration thought it was
unusual when, the morning after Avery’s post, they continued to
receive phone calls, emails, and personal visits regarding Jamfest.74
Additionally, a group of upset students had gathered outside the
administration’s office.75 (Critically, this group of students left as
66.
67.
68.
69.
70.
71.
72.
73.
See id. at 216–19.
Id. at 216.
Id. at 219.
Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011).
Id. at 339–41 (2d Cir. 2011).
Id. at 340.
Id. at 341.
Id. at 349 (“According to the undisputed facts in this case, the controversy over
Jamfest’s scheduling had already resulted in a deluge of phone calls and emails, several
disrupted schedules, and many upset students even before Doninger posted her comments
on livejournal.com.” (emphasis in original)).
74. See id. at 339–42.
75. Id. at 341.
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soon as Avery explained to them that Jamfest was not cancelled.)76
Because of these things, administrators testified that they were
forced to either miss or arrive late to “school-related activities . . .
including a health seminar, an observation of a non-tenured
teacher, and a superintendents’ meeting.”77 When administration
later discovered Avery’s post after these events had taken place,
they punished her by disallowing her from running for senior class
secretary.78
Like Justin, Avery and her parents brought suit. Although the
Second Circuit ultimately decided the Doninger case in favor of the
defendants on the basis of qualified immunity, the court concluded
that Avery’s case likely met the Tinker test, and that even Fraser was
potentially applicable to Avery’s case.79 As the court explained,
Tinker “provid[ed] ‘substantial grounds’ for the school officials here
‘to have concluded [they] had legitimate justification under the law
for acting as [they] did.’”80
To start, it was reasonable for school officials to anticipate a
substantial disruption because of the language Avery had used in
her post, and the fact that the information she had provided was
“at best misleading and at wors[t] false[.]”81 Additionally,
“Doninger’s blog post directly pertained to an event at LMHS, . . .
it invited other students to read and respond to it by contacting
school officials, [and] th[e] students did in fact post comments on
the post[.]”82 Neither was Fraser out of the question.83 Rather than
completely rule out Fraser like the Third Circuit did, the court
concluded that because “the applicability of Fraser to plainly
offensive off-campus student speech is uncertain,” so even Fraser
potentially cut against Avery’s case.84
Finally, there was already sufficient evidence that tensions were
running high about Jamfest.85 Neither party contested the fact that
76.
77.
78.
79.
80.
Id.
Id.
Id. at 342.
Id. at 343–48.
Id. at 348 (second and third alterations in original) (citing Saucier v. Katz, 533 U.S.
194, 208 (2001)).
81. Id. (first alteration in original) (quoting Doninger v. Niehoff, 527 F.3d 41, 51 (2008)).
82. Id.
83. See id.
84. Id.
85. See id.
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“the controversy over Jamfest’s scheduling had already resulted in
a deluge of phone calls and emails, several disrupted schedules,
and many upset students even before Doninger posted her
comments on livejournal.com.”86 Thus, because tensions at the
school were already running high, the court concluded that “there
remain[ed] no triable issue here as to whether it was objectively
reasonable for school administrators to conclude that Doninger’s
posting was potentially disruptive to the degree required by
Tinker.”87
3. The irreconcilable rationales in Layshock and Doninger
The Layshock and Doninger cases showcase the extent to which
students’ rights are currently determined by jurisdictional lines.
Both Justin and Avery used online platforms to say derogatory
things about members of their school administrations, and both
Avery and Justin’s actions ended up impacting what took place oncampus. However, Avery’s post, which was arguably much less
offensive than Justin’s outrageous Myspace parody profile, was
punishable, while Justin’s post was not. Most notably, Avery’s post,
which appeared to only cause slight inconveniences for school
administrators, such as making administrators late to certain
meetings, was determined to be a substantial disruption to the
school. In contrast, Justin’s post, which arguably had a greater
impact on the student body and teachers, given the resulting class
cancellation and nearly week-long limitations on school computer
use, was not considered a substantial disruption.88
This, of course, is not to say that there are not meaningful
factual distinctions between the two cases. Unlike Avery, Justin
was not a student leader.89 And, where Avery’s punishment was
limited to the extracurricular context, Justin’s post got him
86. Id. at 349 (emphasis added).
87. Id. at 348–49.
88. Perhaps, if the school had specifically argued that Justin’s post had caused a
substantial disruption, the court may have been more willing to consider the application of
Tinker to Justin’s actions. However, even if this was the case, it is unlikely that the court
would have been willing to give too much weight to this argument, due to its aversion to
allowing schools to monitor students’ off-campus speech.
89. However, as this Note will later show, even if the facts of the cases are much more
similar (e.g., the students are both being banned from the same extracurricular activity, for
the same type of speech), courts will still come to different conclusions.
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suspended, disallowed from participating in his graduation
ceremony, banned from all extracurricular activities, etc.90 Another
difference is that in Avery’s case, tensions were already running
high, whereas at Justin’s school, his post did not occur within the
context of a problem that was already schoolwide. This is
meaningful because the higher tensions at a school are, the more a
court is justified in holding that a school administration was
reasonable in concluding that a student’s actions could cause a
substantial disruption.
These distinctions alone, however, still fail to explain the
serious differences in how the courts applied Tinker and Fraser.
According to the Third Circuit’s decision in Justin Layshock’s case,
the Tinker and Fraser tests can only be applied in specific
circumstances; in contrast, to the Second Circuit, Tinker is expansive
in its reach, and even Fraser isn’t definitively off the table. The
policy rationales motivating each court are also very different. In
Layshock, the court was incredibly sensitive to the dangers of
allowing a school’s authority to extend beyond the literal
schoolhouse gate; in contrast, the Doninger court seemed relatively
unconcerned about the possible opportunities for school overreach,
and it only mentioned the issue in passing.91 Thus, cases like
Layshock and Doninger provide more questions than answers.
C. Conflicts in the Extracurricular Context
Finally, the division amongst courts is especially highlighted in
the narrower context of regulating the off-campus, online speech of
students that choose to participate in extracurricular activities. For
90. Besides the stark fact that Justin’s punishment was clearly harsher than Avery’s
punishment, this distinction is also worth noting because a student is likely to receive greater
legal protection if his or her access to school itself has been limited. All state constitutions
mandate the creation of a public school system, and many state constitutions specifically
state that their school system will be open to all children of the state. See Emily Parker, 50State Review: Constitutional Obligations for Public Education, EDUC. COMMISSION STS. 1, 5–22
(Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligationsfor-public-education-1.pdf. In contrast, to the knowledge of the author, there are no federal
or state laws that hold that extracurricular participation is a right. Therefore, a student
automatically has much greater legal protection if her school’s punishment threatens her
right to an education, not just her desire to participate in an extracurricular activity.
91. See Doninger, 642 F.3d at 351. The Doninger court stated, “To be clear, we do not
conclude in any way that school administrators are immune from First Amendment scrutiny
when they react to student speech by limiting students’ participation in extracurricular
activities.” Id. But, the court did nothing to expand on this statement. See id.
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example, consider the details of the following conflicting
cheerleader cases.
1. B.L. ex rel. Levy v. Mahanoy Area School District
In B.L. ex rel. Levy v. Mahanoy Area School District, a high school
cheerleader, B.L., posted a picture to Snapchat of her and her friend
“holding up their middle fingers[.]”92 Superimposed over the
picture was the caption, “fuck school fuck softball fuck cheer fuck
everything.”93 The snap was taken in front of a local convenience
store over the weekend, and B.L. was not participating in any
school activity at the time.94 Additionally, B.L. had only sent the
snap to her private followers.95
Notwithstanding these facts, when B.L.’s snap was shown to
school authorities, B.L.’s coaches removed her from the squad.96
According to the coaches, B.L.’s dismissal was justified on the basis
that she had used profanity, and that she had violated the cheer
squad’s rules. Among other things, the rules stated,
Please have respect for your school, coaches, teachers, and other
cheerleaders and teams. Remember, you are representing your
school when at games, fundraisers, and other events. Good
sportsmanship will be enforced, this includes foul language and
inappropriate gestures . . . . There will be no toleration of any
negative information regarding cheerleading, cheerleaders, or
coaches placed on the internet.97
As a result, B.L.’s parents brought suit against the school
district, seeking a preliminary injunction.98 Fortunately for B.L., the
court concluded that B.L. was likely to succeed on the merits of her
claim and granted her motion.99 First, because B.L.’s school did not
claim that her snap had caused a substantial disruption, the court
concluded, with little to no analysis, that B.L.’s punishment could
92. B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 289 F. Supp. 3d 607, 610
(M.D. Pa. 2017).
93. Id.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id. at 611. Relevantly, prior to this time, B.L. had already been granted a Temporary
Restraining Order, which kept her from being removed from the team. Id.
99. See id. at 616.
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not be justified under Tinker.100 Second, B.L. could not be punished
for the offensive language in her snap because the Third Circuit had
already determined that Fraser was inapplicable to off-campus
speech.101
Further, as a policy matter, the court was very uncomfortable
with the idea of enforcing school punishments that would
essentially allow students to become the “Thought Police—
reporting every profanity uttered—for the District.”102 Therefore,
the court refused to offer a different framework for analyzing
student speech cases where the punishment involved removal from
an extracurricular activity.103 The court also concluded that if the
cheerleading rules remained in place, “B.L. would be subject to
continuing censorship of her protected speech.”104 Accordingly, the
court granted B.L.’s motion.105
2. Johnson v. Cache County School District106
Conversely, in a nearly identical case, the U.S. District Court for
the District of Utah chose to rule in favor of the school district.107 In
Johnson v. Cache County School District, shortly after finding out that
she had made her high school cheer squad, S.J. posted a video to
Snapchat of her and four other cheerleaders singing along to Big
Sean’s song, “I.D.F.W.U.”108 The snap was approximately eight
seconds long and showed the girls wearing their Mountain Crest
cheer shirts as they sang, “I don’t fuck with you, you little stupid
100.
101.
102.
103.
104.
105.
See id. at 612 n.7.
See id. at 613.
Id. at 614.
See id. at 613–14.
Id. at 615.
After successfully getting a preliminary injunction, B.L.’s case was again brought
before the U.S. District Court for the Middle District of Pennsylvania. On March 21, 2019, the
judge issued a ruling in favor of B.L. B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., 376
F. Supp. 3d 429 (M.D. Pa. 2019). However, on April 12, 2019, the school district appealed. See
Brief for Appellant at 1, B.L. ex rel. Levy v. Mahanoy Area Sch. Dist., No. 19-1842 (June 28,
2019). So, the ultimate outcome of this case is still uncertain.
106. The Author worked as a law clerk for the Litigation Division of the Utah Attorney
General’s Office that defended the Cache County School District in the Johnson lawsuit. All
information included in this Note about the Johnson case is drawn from the public record; no
confidential information has been disclosed. The opinions expressed herein are not
necessarily the opinion of the Attorney General’s Office, the Cache County School District,
or any of the individuals involved in the litigation.
107. Johnson v. Cache Cty. Sch. Dist., 323 F. Supp. 3d 1301, 1324 (D. Utah 2018).
108. Id. at 1308–09.
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ass bitch, I ain’t fucking with you.”109 In addition to using similarly
offensive language to the student in B.L., S.J.’s post was also private,
and only viewable to thirty to forty of S.J.’s followers.110 Unlike B.L.,
however, around thirty minutes after posting, S.J. decided that the
snap was inappropriate to share, and she deleted it.111
Unfortunately for S.J. though, one of the recipients of her post took
a screenshot of the snap and showed school administrators and
cheer coaches.112 As a result, S.J. was dismissed from the squad.113
According to S.J.’s coaches and administrators, her punishment
was justified for several reasons.114 During the cheer tryout process,
administrators and coaches had spoken “at length” about
appropriate social media use.115 The squad’s coach had told the
students “not to post any derogatory or nasty comments, to refrain
from bullying or any ‘catty’ comments, and not to post anything
that would do dishonor to themselves, their family, or their
school.”116 Administrators had also explained that, in the past,
cheerleaders’ inappropriate social media use had escalated
problems between Mountain Crest and the neighboring high
school, Ridgeline.117 Further, upon being informed that she had
made the cheer squad, S.J. had been encouraged not to post
anything about the results until they were formally announced the
following day.118
As for the content of S.J.’s post, administration thought that the
language in S.J.’s post “bordered on threatening and was informed
that the video made other girls who had not been chosen to feel
bullied and that S.J. and the other girls were gloating.”119 In
addition to these factors, the school also concluded that S.J.’s
dismissal was appropriate because S.J. remained “unrepentant and
insistent that the post was accidental and unintentional[,]” a claim
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
Id. at 1309.
Id.
Id.
Id.
Id. at 1309–10.
See id. at 1307–10.
Id. at 1308.
Id.
Id.
Id. at 1308–09.
Id. at 1310.
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that led administrators to conclude that S.J. was lying to them about
her choice to post the video.120
Like B.L., S.J. brought her case to court, and asked for a
temporary restraining order and a preliminary injunction.121
However, unlike B.L., S.J. was not granted either remedy.122 First,
the court concluded that it was unclear whether S.J.’s speech could
potentially be punished under Fraser because the “‘school context’
[referred to in Fraser] [could] be broader than simply ‘on school
grounds.’”123 Further, S.J.’s speech “could be viewed as more
vulgar than the offensive speech in Fraser.”124
The court also concluded that it was unlikely that S.J.’s speech
was protected under Tinker.125 Given the nature of S.J.’s speech, it
was “subject to lesser protection than the ‘nondisruptive, passive
expression of a political viewpoint in Tinker.’”126 Further, the court
concluded that the school had successfully shown that S.J.’s video
had “the effect of materially and substantially disrupting the work
and discipline of the cheer squad in a variety of ways.”127 It was
insubordinate, “ran the risk of fueling the rivalry between
Mountain Crest and Ridgeline, and had the potential of causing
conflict between students at Mountain Crest.”128
Additionally, S.J.’s punishment was also likely to be found
valid on the basis that “[t]here is a difference between excluding a
student from participation in a voluntary extracurricular activity
and disciplining or suspending a student from class.”129 Essentially,
by going out for the team, S.J. and all other students who
participated in extracurricular activities necessarily subjected
themselves to higher standards.130 As the court specifically noted,
“this court disagrees with the B.L. court’s failure to consider the
difference between a school suspension and participation in an
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
854
Id.
Id. at 1307.
Id. at 1324.
Id. at 1317 (quoting Morse v. Frederick, 551 U.S. 393, 405 (2007)).
Id. at 1319.
Id.
Id. (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 680 (1986)).
Id.
Id. at 1320.
Id.
Id. at 1321.
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Post That, and You Won’t Play
extracurricular activity.”131 Thus, “[e]ven if S.J. had not used
profanity, she could have been disciplined for insubordination,
lying to administrators, and failing to take responsibility for her
actions.”132
Finally, unlike in B.L., where the court specifically discussed the
dangers of chilling student speech, the Johnson court did not think
that the cheer squad rules would continue to negatively impact S.J.
As the court summarized, “S.J. has no specific plan to post anything
inappropriate in the future and it is a condition of participating in
an extracurricular activity, not a condition of her right to attend
school.”133 Therefore, since the school’s actions were not a clear
violation of S.J.’s rights, the court ruled in favor of the school.134
3. The irreconcilable outcomes of B.L. and Johnson
Few factual differences exist between B.L. and Johnson. Both
students’ posts were connected to cheer and, according to their
schools, both cheerleaders showed disrespect towards their schools
and violated their squads’ rules. The only significant incongruity
between these cases is the fundamentally different interpretations
the reviewing courts and the parties to these cases had of Tinker and
Fraser, and their more general disagreement about how
extracurricular activities should be treated under the law.135
II. INSUFFICIENT CURRENT APPROACHES
FOR EXTRACURRICULAR ACTIVITIES
Although it is still unclear how courts should resolve the dicey
issues presented in cases like B.L. and Johnson, trends for how
courts should evaluate these cases have begun to emerge. Most
commonly, the rationales that courts and commentators rely on
tend to diverge into one of two approaches. Under the first
approach, schools can create higher standards for students that
participate in extracurricular activities. Under the second approach,
schools can rely on courts’ generous application of the Tinker
131.
132.
133.
134.
135.
Id.
Id.
Id. at 1316.
Id. at 1323–24.
To see just how diametrically opposed the B.L. and Johnson courts are, see a later
case B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429, 438–39 (M.D. Pa. 2019).
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standard. Unfortunately, although both of these approaches have
their merits, as I will explain below, both approaches also suffer
from serious defects.
A. Approach #1: Schools Can Create Higher Standards
for Students that Participate in Extracurricular Activities.
Some courts136 and commentators137 have concluded that one of
the best ways to resolve the debacle over students’ online speech in
the extracurricular context is to simply recognize that by going out
for the team, students necessarily subject themselves to higher
standards. This solution, which I will refer to as the Higher Standards
Approach, is attractive for a number of reasons. First, this rule cuts
down on the complexity and uncertainty courts face when students
bring claims that their rights have been violated. Rather than
struggling to apply less-than-clear Supreme Court precedent to
student speech in the digital age, courts can simply defer to a
school’s sense of judgment. Such deference is merited on the basis
that participation in extracurricular activities is a privilege, not a
right. Additionally, it is schools, not courts, that are in the best
position to determine how extracurricular programs should be run.
Second, although such outcomes would not necessarily always
be fair, the Higher Standards Approach would at least bring much
needed clarity to schools and even to students—at least in a sense.
Through this approach, schools would be able to confidently assert
boundaries for different student groups, rather than always be
uncertain as to whether their rules will embroil the school district
in a nasty lawsuit. Additionally, students would go into
extracurricular activities knowing that their school’s standards for
its extracurriculars are nonnegotiable and, if in doubt, they should
err on the side of caution when posting anything on social media.138
136. See Doninger v. Niehoff, 642 F.3d 334, 350–51 (2d Cir. 2011); Johnson, 323
F. Supp. 3d at 1321.
137. See Miller, supra note 20, at 305.
138. Although it is possible to imagine a scenario where a court would conclude that a
school’s heightened standards for extracurricular activities had gone so far as to violate
students’ constitutional rights, as I will explain later in this Note, such outcomes will only
occur in rare, exceptional cases.
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Third, both Supreme Court139 and some circuit court140
precedents support the proposition that schools can hold students
who participate in extracurricular activities to higher standards.
For example, in Vernonia School District 47J v. Acton, a student and
his parents challenged the school district’s policy of randomly drug
testing student athletes.141 Ultimately, the Court ruled in favor of
the school.142 As the Court explained, “[b]y choosing to ‘go out for
the team,’ [students] voluntarily subject themselves to a degree of
regulation even higher than that imposed on students generally.”143
Additionally, the Court analogized that “[s]omewhat like adults
who choose to participate in a ‘closely regulated industry,’ students
who voluntarily participate in school athletics have reason to
expect intrusions upon normal rights and privileges, including
privacy.”144 More recently, in Doninger145 and Johnson,146 the courts
have also justified their decisions, at least in part, upon this
rationale.
Notwithstanding the benefits of this Higher Standards Approach,
transplanting principles from cases like Vernonia (which did not
implicate First Amendment concerns) to cases involving student
speech on social media has a number of unwelcome consequences.
When constitutional rights are at stake, the efficiency and ease of
bright-line rules should not supplant equity and justice. Although
this approach has the benefits of being relatively straightforward
and easy to apply, it is insufficient to ensure that students’ most
important rights are protected. This is because it allows courts to
give far too much deference to schools’ decisions on student speech.
Rather than resolve more complex questions, such as whether the
student’s speech actually had a substantial impact on the school, or
rely on other, equally difficult-to-apply Supreme Court precedent,
this enables courts to take the path of least resistance and simply
conclude that the student essentially “signed up” for the speech
139.
140.
141.
142.
143.
144.
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995).
See, e.g., Lowery v. Euverard, 497 F.3d 584, 589–600 (6th Cir. 2007).
Vernonia, 515 U.S. at 651.
Id. at 666.
Id. at 657.
Id. (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 627 (1989); U.S. v.
Biswell, 406 U.S. 311, 316 (1972)).
145. Doninger v. Niehoff, 642 F.3d 334, 350–51 (2d Cir. 2011)
146. Johnson v. Cache Cty. Sch. Dist., 323 F. Supp. 3d 1301, 1321 (D. Utah 2018).
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restrictions at issue by choosing to participate in the activity. Thus,
with the exception of cases involving outrageous encroachment on
student speech, courts will likely defer to schools’ student-speech
restrictions.
Further, even though some court precedents have established
that students who participate in extracurricular activities may be
held to higher standards…
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