Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy

No. 20-255

In the Supreme Court of the United States

__________________

MAHANOY AREA SCHOOL DISTRICT,

Petitioner,

v.

B.L., A MINOR, BY AND THROUGH HER FATHER,

LAWRENCE LEVY, AND HER MOTHER, BETTY LOU LEVY,

Respondents.

__________________

On Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

__________________

BRIEF OF AMICUS CURIAE FIRST LIBERTY

INSTITUTE IN SUPPORT OF RESPONDENTS

__________________

KELLY J. SHACKELFORD

Counsel of Record

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

JUSTIN E. BUTTERFIELD

LEA E. PATTERSON

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway, Suite 1600

Plano, TX 75075

(972) 941-4444

kshackelford@firstliberty.org

Counsel for Amicus Curiae

March 31, 2021

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

CERTIFICATE OF INTERESTED ENTITIES OR

PERSONS

First Liberty Institute is a nonprofit, public interest

law firm and 501(c)(3) organization. It does not issue

stock, and no other entity or person has an ownership

interest of 10 percent or more in the organization.

ii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED ENTITIES

OR PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Government Schools Are Hostile to Student

Religious Speech that Disagrees with

Contemporary Elite Views on Social Issues . . . . 4

II.

Tinker Provides the Appropriate Balance

Between Government Power and Student

Religious Speech . . . . . . . . . . . . . . . . . . . . . . . 7

III.

Expanding the State’s Power to Punish

Student Speech that Occurs Outside the

School Environment Will Open the Door for

School Officials to Punish Speech with which

They Disagree . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The school’s effort to punish off-campus

speech exceeds its authority . . . . . . . . . . 10

B. The speech at issue did not rise to the

level of a material and substantial

disruption . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii

TABLE OF AUTHORITIES

CASES

Babb v. Matlock,

9 S.W.3d 508 (Ark. 2000) . . . . . . . . . . . . . . . 11, 12

Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,

482 U.S. 569 (1987). . . . . . . . . . . . . . . . . . . . . . . . 8

Bd. of Educ. v. Mergens,

496 U.S. 226 (1990). . . . . . . . . . . . . . . . . . . . . . . . 5

Bethel Sch. Dist. No. 403 v. Fraser,

578 U.S. 675 (1986). . . . . . . . . . . . . . . . . . . . . . . . 2

Blackwell v. Issaquena Cty. Bd. of Educ.,

363 F.2d 749 (5th Cir. 1966). . . . . . . . . . . . . . . . 13

Burnside v. Byars,

363 F.2d 744 (5th Cir. 1966). . . . . . . . . . . . . . . . 13

Carvin v. Britain (In re Parentage of L.B.),

122 P.3d 161 (Wash. 2005) . . . . . . . . . . . . . . . . . 11

Chalifoux v. New Caney Independent School District,

976 F. Supp. 659 (S.D. Tex. 1997) . . . . . . . . . . . . 6

Edwards v. Aguillard,

482 U.S. 578 (1987). . . . . . . . . . . . . . . . . . . . . . . . 4

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . . 5

Harmon v. Dep’t of Soc. & Health Servs.,

951 P.2d 770 (Wash. 1998) . . . . . . . . . . . . . . . . . 11

Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118,

9 F.3d 1295 (7th Cir. 1993). . . . . . . . . . . . . . . . . . 9

iv

Hills v. Scottsdale Unified Sch. Dist. No. 48,

329 F.3d 1044 (9th Cir. 2003). . . . . . . . . . . . . . . . 9

In re Agnes P.,

800 P.2d 202 (N.M. Ct. App. 1990) . . . . . . . . . . 11

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . . 5

Matthews v. Kountze Independent School District,

484 S.W.3d 416 (Tex. 2016) . . . . . . . . . . . . . . . . . 5

McDonald v. Tex. Employers’ Ins. Ass’n,

267 S.W. 1074 (Tex. App.—Dallas 1924) . . . . . . 11

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011). . . . . . . . . . . . . . . . . 5

Morse v. Frederick,

551 U.S 393 (2007) . . . . . . . . . . . . . . . . . 2, 3, 7, 11

Pounds v. Katy Independent School District,

730 F.Supp.2d 636 (S.D. Tex. July 30, 2010) . . . 6

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995). . . . . . . . . . . . . . . . . . . . . . . . 9

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3rd Cir. 2001) . . . . . . . . . . . . . . . . 6

Schultz v. Medina Valley Independent School

District, No. 11-50486 (5th Cir. June 3, 2011) . . . . . 6

Schultz v. Medina Valley Indep. Sch. Dist., No. SA11- CA-422-FB, 2011 WL 13234770

(W.D. Tex. June 1, 2011) . . . . . . . . . . . . . . . . . . . 6

v

State v. Randall S. (In re Interest of Destiny S.),

639 N.W. 2d (Neb. 2002). . . . . . . . . . . . . . . . . . . 12

Texas v. Johnson,

491 U.S. 397 (1989). . . . . . . . . . . . . . . . . . . . . . . . 8

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) . . . . . passim

W. Va. St. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . . . . 14

Wallace v. Jaffree,

472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 4

Widmar v. Vincent,

454 U.S. 263 (1981). . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES

20 U.S.C. §§ 4071-74 . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

1 W. Blackstone, Commentaries on the Laws of

England (1765) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Catherine J. Ross, Assaultive Words and

Constitutional Norms, 66 J. of Legal Educ. 739

(2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kelly Shackelford, Mary Beth and John Tinker and

Tinker v. Des Moines: Opening the Schoolhouse

Gates to First Amendment Freedom, 39 J. Sup.

Ct. History 372 (2014) . . . . . . . . . . . . . . . . . . . . . 7

vi

Statement of Hiram S. Sasser, U.S. Comm’n on

Civil Rights (May 13, 2011), http://www.eus

ccr.com/11.%20Hiram%20S.%20Sasser,%20III,

%20Liberty%20Institute.pdf (last visited Mar.

29, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Michael Vasquez, Broward schools’ Runcie says

Bible controversy “should’ve been handled

differently,” Miami Herald (Sept. 12, 2014),

https://www.miamiherald.com/news/local/educ

ation/article1964003.html . . . . . . . . . . . . . . . . . . 6

1

INTEREST OF AMICUS CURIAE1

First Liberty Institute (“First Liberty”) is a

nonprofit, public interest law firm dedicated exclusively

to defending religious liberty for all Americans.

Through pro bono legal representation of both

individuals and institutions, First Liberty’s clients

include people of diverse religious beliefs, including

individuals and institutions of the Catholic, Protestant,

Islamic, Jewish, Falun Gong, and Native American

faiths.

Preserving student free speech is critical given the

widespread hostility many government school officials

exhibit towards students who express their religious

beliefs. See Statement of Hiram S. Sasser, U.S.

Comm’n on Civil Rights (May 13, 2011),

http://www.eusccr.com/11.%20Hiram%20S.%20Sasse

r,%20III,%20Liberty%20Institute.pdf (last visited Mar.

29, 2021). From year to year, First Liberty represents

many students who face discrimination because of their

faith at the hands of government school officials. These

cases often involve blatant violations of law, such as

the Equal Access Act, 20 U.S.C. §§ 4071–74, but even

more frequently First Liberty’s student clients face

school officials who completely disregard this Court’s

precedent in Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969).

Through its experience countering rampant

1

The parties consented to the filing of this brief as amicus curiae.

Rule 37.3(a). No counsel for any party authored this brief in whole

or in part. No person or entity, aside from amicus and its counsel,

made a monetary contribution to the preparation or submission of

this brief. Rule 37.6.

2

faithlessness to Tinker, First Liberty provides a useful

perspective on how extending Tinker’s reach to off

campus speech will impact religious students in

classrooms throughout the nation every day. While it

is typical for the student speech cases that reach the

Court to involve speech of questionable taste (e.g.,

Bethel and Morse),2 eroding Tinker and extending it

beyond the schoolhouse gates poses a grave threat to

students of faith. Amicus therefore urges the Court to

reinforce Tinker’s strong standard and reject the

invitation to extend its reach off campus.

SUMMARY OF ARGUMENT

Government schools are generally hostile to student

religious speech for two core reasons: (1) an

overabundance of caution in avoiding Establishment

Clause concerns, and (2) genuine hostility towards

students of faith. While government schools may

advance any number of views or ideas that are contrary

to or demonstrably hostile toward the faith of millions

of Americans, often courts stand ready to enjoin

government schools from engaging in speech that

advances any ideas that derive from the faith of those

millions. As a result, some government schools

translate that tension onto student religious speech,

showing it hostility because they mistakenly think it

necessary to avoid a lawsuit. However, many

government schools demonstrate hostility to student

religious speech because of school officials who are

2

Bethel Sch. Dist. No. 403 v. Fraser, 578 U.S. 675 (1986) (vulgar

speech); Morse v. Frederick, 551 U.S 393 (2007) (speech promoting

drug use).

3

themselves hostile to expression that runs contrary to

contemporary elite culture.

Tinker’s material and substantial disruption

standard, and its limitation to speech occurring within

the school environment, provides the only saving grace

for student religious speech. Petitioner’s arguments

would erode this indispensable protection. First,

Petitioner’s argument simply recasts the educational

mission justification the Court rejected in Morse.

Second, the prohibition on viewpoint discrimination

alone is not enough to protect free speech. Third,

allowing government school officials to punish student

speech that occurs outside of school is not legally

justified and will do significant harm to student

religious speech. Government officials cannot misuse

the concept of in loco parentis to justify extending their

authority and jurisdiction beyond the schoolhouse gate.

Holding to the contrary opens the door for school

officials to suppress student religious expression

anytime and anywhere it occurs, especially expression

of religious beliefs that touch on controversial issues.

ARGUMENT

B.L. is a teenage girl rejected from the varsity

cheerleading team at her high school, who vented to

her friends on social media with provocative and

tasteless language. Yet such utterances from teenagers

are ubiquitous. Prior to the internet age, such

utterances conveyed via telephone would not provide a

handy transcript for busybody government officials.

But as social media now provides a written record of

teenage rashness to school administrators, government

4

schools ask the Court to cede them a heavy regulatory

hand. The Court should refrain from so doing.

I.

Government Schools Are Hostile to Student

Religious Speech that Disagrees with

Contemporary Elite Views on Social Issues.

No school may advance religion as part of its

mission. See, e.g., Edwards v. Aguillard, 482 U.S. 578

(1987); Wallace v. Jaffree, 472 U.S. 38 (1985). This

principle leads many government school officials to

conclude that any student religious speech is

inherently inconsistent with the school’s educational

mission and, therefore, belongs elsewhere. As a result,

even school officials not openly hostile to religious

speech are often hesitant to tolerate student religious

expression. This burden does not fall equally on all

students. For example, school officials do not generally

censure students who bring a book to school promoting

certain lifestyles that many believe the Bible or Koran

questions. In fact, the school is free to, and often does,

promote those lifestyles. The government school may

fly flags bearing the symbol of that advocacy without

concern for constitutional recrimination but cannot fly

a flag conveying religious support.

Government schools may convey messages

diametrically opposed to many students’ faiths but

cannot convey their religious counterparts, and this

reality defines the landscape in which student religious

expression occurs. Thus, government school officials

naturally tend to be wary of religious speech as a

matter of course, which tends to prejudice officials

toward a censorious instinct whether they are

intentionally hostile to faith or not.

5

Even though no Establishment Clause concern

arises from student religious expression, see, e.g., Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13

(2001), many government school officials will take

advantage of whatever leeway the Court provides to

engage in discrimination against student religious

speech, especially when that speech contradicts

popular social values. These concerns are not

hypothetical. Amicus knows from experience that if the

Court permits government school officials to censure a

student for speech made off campus and outside of the

physical control of the government school officials, such

officials will take the opportunity to censor religious

speech.

For decades, many schools have sought persistently

to suppress student religious speech in violation of the

Court’s decisions. See, e.g., Good News Club, 533 U.S.

98; Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993); Bd. of Educ. v. Mergens, 496

U.S. 226 (1990); Widmar v. Vincent, 454 U.S. 263

(1981). A litany of cases in every circuit enforces these

decisions against resistant government schools. Amicus

has handled a legion of matters where schools ban

student religious speech in a manner that can only be

stopped by Tinker. Some of those cases include:

Matthews v. Kountze Independent School District, 484

S.W.3d 416 (Tex. 2016) (considering claims against a

school district that prohibited cheerleaders from

incorporating Bible verses into student-created banners

at football games); Morgan v. Swanson, 659 F.3d 359

(5th Cir. 2011) (en banc) (finding school officials

violated the First Amendment by prohibiting a student

from giving “Legend of the Candy Cane” pens to his

6

classmates during the school winter break party while

other students could distribute goody bags containing

nonreligious items); Pounds v. Katy Independent School

District, 730 F.Supp.2d 636 (S.D. Tex. July 30, 2010)

(finding school officials who blacked out a scripture

quotation on a student-personalized holiday card order

form containing secular options engaged in viewpoint

discrimination not justified by the Establishment

Clause); Schultz v. Medina Valley Independent School

District, No. 11-50486, at *1-2 (5th Cir. June 3, 2011)

(unpublished) (dissolving temporary restraining order

protecting high school valedictorian who was

prohibited from praying during her graduation

speech)3; Michael Vasquez, Broward schools’ Runcie

says Bible controversy “should’ve been handled

differently,” Miami Herald (Sept. 12, 2014),

https://www.miamiherald.com/news/local/education/a

rticle1964003.html (student prohibited from reading

his Bible during free reading time). Counsel for Amicus

also participated extensively in Chalifoux v. New Caney

Independent School District, 976 F. Supp. 659 (S.D.

Tex. 1997) (invalidating school dress code prohibiting

students from wearing rosaries) (discussed favorably in

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,

211–12 (3rd Cir. 2001) (Alito, J.)). Given the natural

hostility to student religious expression in government

schools, the Court should not abandon Tinker or extend

it beyond the school environment.

3

Available at https://www.clearinghouse.net/chDocs/public/FA-TX0001-0005.pdf; see also Schultz v. Medina Valley Indep. Sch. Dist.,

No. SA-11-CA-422-FB, 2011 WL 13234770, *1 (W.D. Tex. June 1,

2011).

7

II.

Tinker Provides the Appropriate Balance

Between Government Power and Student

Religious Speech.

Tinker’s standard provides an objective measure to

balance the school’s need to maintain order and

discipline with protecting student speech. See Kelly

Shackelford, Mary Beth and John Tinker and Tinker v.

Des Moines: Opening the Schoolhouse Gates to First

Amendment Freedom, 39 J. Sup. Ct. History 372, 378

(2014). This standard allows narrow regulation based

on a concrete and substantial disruption to the learning

environment, but it does not allow broad regulation

based merely on offense, hurt feelings, or discomfort

with the subject matter. Under Tinker, the Court

properly rejects speech regulations based on overbroad

rationales such as the “‘educational mission’ of the

public schools.” Morse, 551 U.S. at 423 (Alito, J.,

concurring) (controlling opinion). Such a rationale,

after all, would effectively eviscerate Tinker, as it is

difficult to imagine any censorship, however draconian,

that could not be justified in some way as part of a

school’s “educational mission.”

Petitioner’s argument reconstitutes this same

“educational mission” argument that the Court rejected

in Morse. Petitioner seeks broad authority to punish a

student for posting “negative information” on a social

media platform away from school on her own time in

order to prevent unspecified “chaos.” See Petitioner’s

Br. 7. Petitioner contends that this “negative

information” “could impact students at school.” Id. But

Petitioner points to no evidence that there was any

impact beyond the potential for hurt feelings. Such

8

broadly generalized justifications do not pass the

objective Tinker standard, and the Court should not

lose sight of what these vague claims seek to justify—a

prohibition on students communicating “negative

information” on personal social media outside of school.

The school likely believes that “negative information”

interferes with its educational mission. But Tinker

requires more, and for good reason—a prohibition on

“negative information” enables school officials to

prohibit any student expressions they dislike or

disagree with, even if the expressions do not undermine

the school’s good order and discipline. “If there is a

bedrock principle underlying the First Amendment, it

is that the Government may not prohibit the

expression of an idea simply because society [or school

officials] finds the idea itself offensive or disagreeable.”

Texas v. Johnson, 491 U.S. 397, 414 (1989). The Court

rightly rejected such arguments before, and it should

do so again.

In addition, Petitioner erroneously suggests that the

constitutional prohibition on viewpoint discrimination

adequately protects student speech from an eminently

abuseable ban on communicating negative information.

However, viewpoint neutral rules can still violate the

First Amendment by suppressing speech on all sides to

eliminate controversy. For example, the Los Angeles

International Airport imposed the infamous resolution

banning all “First Amendment activities” precisely

because of its viewpoint neutrality, but the Court

struck down the resolution as overbroad nonetheless.

See Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482

U.S. 569 (1987). Without Tinker’s strong standard,

government schools may adopt rules banning entire

9

categories of discussion, creating subject matter

blacklists for students both at school and at home.

Such blacklists could, for example, try to ban the

discussion of controversial topics altogether—many of

which are particularly controversial because of

differences in opinion that often derive from religious

convictions.4 Cf. Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819 (1995). But Tinker subjects

even viewpoint neutral rules to the material and

substantial disruption standard, because viewpoint

discrimination is only one of the ways that speech

restrictions may violate the First Amendment. See

Tinker, 393 U.S. at 513 (noting that it is “obvious” that

a viewpoint neutral speech regulation is subject to the

material and substantial disruption test). The Court

should not abandon or alter the Tinker standard in

favor of one that permanently tips the constitutional

scales in favor of a government school’s educational

mission.

4

Importantly, avoiding controversial speech is not even a proper

educational goal—”[f]ar better to teach [students] about the first

amendment, about the difference between private and public

action, about why we tolerate divergent views . . . The school’s

proper response is to educate the audience rather than squelch the

speaker.” Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d

1044, 1055 (9th Cir. 2003) (quoting Hedges v. Wauconda Cmty.

Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299–1300 (7th Cir.1993)

(alterations in original)).

10

III.

Expanding the State’s Power to Punish

Student Speech that Occurs Outside the

School Environment Will Open the Door for

School Officials to Punish Speech with

which They Disagree.

A. The school’s effort to punish off-campus

speech exceeds its authority.

Teenagers use social media. Everyone knows this

and everyone understands what it means—that people

wear their opinions on their digital sleeves. While a

school can take appropriate action if a student

threatens violence against the school, another student,

or a teacher, a school is not a law enforcement agency

or, when the student is not at a school function, acting

in loco parentis and therefore responsible for punishing

all children’s transgressions. Petitioner predicts a

parade of horribles if this Court does not empower the

government school to punish students who engage in

arguably inappropriate online behavior when not under

the authority of the school. But that prediction simply

is not true, because students are subject to the

jurisdiction of other governmental entities and their

parents. For example, the solution to one of Petitioner’s

hypotheticals is simple—if a student crank calls a

teacher at 3 a.m., call the police. Likewise, none of

Petitioner’s hypotheticals require giving schools

extraterritorial power. If the off-campus speech is

sufficiently inappropriate that it commands no

constitutional protection, then the police, the town, the

county, the state, and any other governmental entities

with jurisdiction are capable of handling the situation.

However, the speech at issue in this case did not rise to

11

that level—it was neither illegal nor otherwise

punishable by another governmental entity for obvious

reasons. While the speech was inappropriate and

tasteless, it was, nevertheless, a disciplinary issue for

parents to resolve, not the school.

Petitioner incorrectly invokes the doctrine of in loco

parentis to justify school officials punishing students

for off-campus behavior. The legal doctrine of in loco

parentis enables schools to discipline students and is

defined as follows: “[A parent] may also delegate part

of his parental authority, during his life, to the tutor or

schoolmaster of his child; who is then in loco parentis,

and has such a portion of the power of the parent

committed to his charge, viz. that of restraint and

correction, as may be necessary to answer the purposes

for which he is employed.” Morse, 551 U.S. at 413

(Thomas, J., concurring) (quoting 1 W. Blackstone,

Commentaries on the Laws of England 441 (1765)).

This well-developed common law doctrine recognizes

that in loco parentis status is “temporary by definition

and ceases on the withdrawal of consent by the legal

parent.” Carvin v. Britain (In re Parentage of L.B.), 122

P.3d 161, 168 (Wash. 2005); Harmon v. Dep’t of Soc. &

Health Servs., 951 P.2d 770, 775 (Wash. 1998) (“At

common law the status of one standing in loco parentis

is voluntary and temporary and may be abrogated at

will by either the person standing in loco parentis

or . . . the child.”); In re Agnes P., 800 P.2d 202, 205

(N.M. Ct. App. 1990) (“Furthermore, an in loco parentis

status is temporary and may be abrogated at will by

either the child or the surrogate parent”); McDonald v.

Tex. Employers’ Ins. Ass’n, 267 S.W. 1074, 1076 (Tex.

App.—Dallas 1924) (same); Babb v. Matlock, 9 S.W.3d

12

508, 510 (Ark. 2000) (discussing the principle that the

in loco parentis “relationship may be abrogated at will

by either the person assuming the parental duties or

the child”); State v. Randall S. (In re Interest of Destiny

S.), 639 N.W. 2d 400, 406 (Neb. 2002) (“Once the

person alleged to be in loco parentis no longer

discharges all duties incident to the parental

relationship, the person is no longer in loco parentis.”).

Thus, any in loco parentis status a government

school enjoys is temporary and ends once the parent is

in control of the child. Invoking in loco parentis to

justify punishing a student for off-campus speech

stretches the doctrine beyond its common law reach

and undermines parental authority and responsibility

in the home. If a student engages in off-campus conduct

so inappropriate that the school feels compelled to

address it, then the government school has two options.

First, the school can contact the parents and refer the

issue to them to address within parental discretion.

Alternatively, if the issue is so grave that it requires

law enforcement, then the school can contact the police.

B. The speech at issue did not rise to the

level of a material and substantial

disruption.

Although the speech at issue in this case was

certainly crude and tasteless, it did not rise to the level

of material and substantial disruption. To demonstrate,

two Fifth Circuit cases decided on the same day provide

helpful contrast. In both cases, the court considered

First Amendment challenges to school regulations

prohibiting students from wearing “Freedom Buttons,”

circular pins one and a half inches in diameter

13

inscribed with the words “One Man One Vote.”

Blackwell v. Issaquena Cty. Bd. of Educ., 363 F.2d 749

(5th Cir. 1966); Burnside v. Byars, 363 F.2d 744, 748

(5th Cir. 1966). In Burnside, the Fifth Circuit

invalidated the school’s restriction on students wearing

the Freedom Buttons, because the record demonstrated

that wearing the buttons did not substantially disrupt

the school environment. 363 F.2d at 748. Rather, other

students showed only “mild curiosity,” and the students

wearing buttons were sent home for violating the

regulation, not for causing a disruption. Id. In contrast,

in Blackwell, the students did substantially disrupt the

school environment by distributing Freedom Buttons,

pinning buttons on other students without their

consent, throwing buttons through windows, and

encouraging other students to walk out of class in

protest. 363 F.2d at 753. Through both opinions, the

Fifth Circuit emphasized that although school officials

may limit student speech with rules “necessary for the

orderly presentation of classroom activities,” “school

officials cannot ignore expressions of feelings with

which they do not wish to contend.” Burnside, 363 F.2d

at 749; see Blackwell, 363 F.2d at 754. The speech in

the present case, which allegedly conveyed “negative

information” and caused hurt feelings and some

unspecified chaos, does not demonstrate a material and

substantial disruption to the school environment.

***

The instant case provides an important opportunity

for government schools to honor the principles of the

First Amendment not only by their words, but by their

14

deeds. As the Tinker Court explained, school officials

have

important, delicate, and highly discretionary

functions, but none that they may not perform

within the limits of the Bill of Rights. That they

are educating the young for citizenship is reason

for scrupulous protection of Constitutional

freedoms of the individual, if we are not to

strangle the free mind at its source and teach

youth to discount the important principles of our

government as mere platitudes.

393 U.S. at 507 (quoting W. Va. St. Bd. of Educ. v.

Barnette, 319 U.S. 624, 637 (1943) (emphasis added)).

When schools overregulate student speech, they

“strangle the free mind at its source,” and this

strangulation teaches students that their rights are

“mere platitudes.” Id. Petitioner’s disciplinary action

today against a hot-headed social media post will

become numerous disciplinary actions in the future

against students who make unpopular but valuable

statements on social media accounts—or anywhere

members of the school community can hear their

speech.5 Schools must stay within the First

5

Catherine J. Ross, Assaultive Words and Constitutional Norms,

66 J. of Legal Educ. 739, 744 (2017) (“Recently, students have been

in the vanguard, demanding that offensive speech be silenced.

Students ask to be protected from hurtful words, sentiments, even

gestures, and inadvertent facial clues or rolling eyes that

communicate dismissal. They seek the coercive power of authority

to enforce laudable social norms—respect, dignity, and equality

regardless of race, ethnicity, gender, gender identity, and so forth.

Meritorious as these proclaimed goals are, the rules and penalties

some students lobby for would suppress the expressive rights of

15

Amendment’s limits, and Tinker’s standard will hold

them there.

CONCLUSION

The Court should protect B.L.’s speech and affirm

the judgment below.

Respectfully submitted.

KELLY J. SHACKELFORD

Counsel of Record

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

JUSTIN E. BUTTERFIELD

LEA E. PATTERSON

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway, Suite 1600

Plano, TX 75075

(972) 941-4444

kshackelford@firstliberty.org

Counsel for Amicus Curiae

March 31, 2021

others including students, faculty, and invited guests, a

particularly disturbing prospect at an institution devoted to the

academic enterprise.”).