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,

v.

Petitioner,

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 HISD STUDENT CONGRESS,

KENTUCKY STUDENT VOICE TEAM,

MARCH FOR OUR LIVES ACTION FUND,

STUDENTS FOR A SENSIBLE DRUG POLICY,

AND STUDENT VOICE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

————

MICHAEL J. GRYGIEL

Counsel of Record

GREENBERG TRAURIG, LLP

54 State Street, 6th Floor

Albany, NY 12207

(518) 689-1400

grygielm@gtlaw.com

[Additional Counsel Listed On Inside Cover]

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

VINCENT H. CHIEFFO

CAROLINE KORPIEL

1840 Century Park East

Suite 1900

Los Angeles, CA 90067

(310) 586-7700

chieffov@gtlaw.com

JASON K. HICKS

10845 Griffith Peak Drive

Suite 600

Las Vegas, NV 89135

(702) 792-3773

hicksja@gtlaw.com

GEROND J. LAWRENCE

Terminus 200

3333 Piedmont Road NE

Suite 2500

Atlanta, GA 30305

(678) 553-2100

lawrencege@gtlaw.com

KATIE TIPPER-MCWHORTER

1000 Louisiana Street

Suite 1700

Houston, TX 7700

(305) 579-0500

tipperk@gtlaw.com

JORGE COSS

2375 East Camelback Road

Suite 700

Phoenix, AZ 85016

(602) 445-8000

cossj@gtlaw.com

BETH A. NORROW

450 South Orange Avenue

Suite 650

Orlando, FL 32801

(407) 420-1000

norrowb@gtlaw.com

FRANCESCA CILIBERTI-AYRES

1144 15th Street, Suite 3300

Denver, CO 80202

(303) 572-6500

ciliberti-ayresf@gtlaw.com

Attorneys Pro Bono Publico for Amici Curiae

March 31, 2021

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 4

ARGUMENT ................................................................ 7

I. STUDENTS HAVE HISTORICALLY

USED THEIR VOICES IN THE

VANGUARD OF POLITICAL AND

SOCIAL MOVEMENTS ................................... 7

A. Social Media Empowers Student

Activism and Civic Engagement ................. 7

B. Students Are Best Positioned To Communicate Information About Public

Schools ....................................................... 10

C. Social Science Evidence Disproves

That Social Media Contributes to

Student Misbehavior ................................. 12

II. TINKER’S APPLICATION OUTSIDE

THE

SCHOOL

ENVIRONMENT

WOULD INFRINGE PUBLIC SCHOOL

STUDENTS’ FIRST AMENDMENT

RIGHTS ........................................................... 15

A. Tinker Should Not Be Extended to

Off-Campus Student Speech ..................... 15

B. B.L.’s Speech Away From School Was

Impermissibly Punished Based on

School Authorities’ Disapproval of

Her Choice of Language ............................ 17

(i)

ii

TABLE OF CONTENTS—Continued

Page

C. Petitioner’s Boundless “Targeting”

Rubric Does Not Justify the

Extension of School Authority to OffCampus Public Student Speech ................ 19

D. Participation

in

Extracurricular

Activities Does Not Relinquish a

Student’s First Amendment Rights .......... 24

III. MISFIRED DISCIPLINARY DECISIONS

CAUSE IRREPARABLE HARM TO THE

“ONCE IN A LIFETIME” EXPERIENCE

REPRESENTED BY HIGH SCHOOL ........... 28

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ......................................... 27

Bell v. Itawamba County School Board,

799 F.3d 379 (5th Cir. 2015)

(en banc) .............................................. 12, 20, 26

B.L. ex rel. Levy v. Mahanoy Area

School District,

964 F.3d 170 (3d Cir. 2020) .....................passim

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986) ................................... 18, 19

Cohen v. California,

403 U.S. 15 (1971) ............................................. 4

Cuff v. Valley Central School Distrist,

677 F.3d 109 (2d Cir. 2012) ............................ 18

Grayned v. City of Rockford,

408 U.S. 104 (1972) ................................... 15, 16

Hazelwood School Disrict v. Kuhlmeier,

484 U.S. 260 (1988) ......................................... 19

J.S. ex rel Snyder v. Blue Mountain Sch.

Dist., 650 F.3d 915 (3d Cir. 2011)

(en banc) .......................................................... 12

Johnson v. Zerbst,

304 U.S. 458 (1983) ......................................... 26

LaTrieste Restaurant and Cabaret, Inc. v.

Village of Port Chester,

40 F.3d 587 (2d Cir. 1994) .............................. 25

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Layshock ex rel. Layshock v. Hermitage

School District,

650 F.3d 205 (3d Cir. 2011) (en banc) ............ 22

Lowery v. Euverard,

497 F.3d 584 (6th Cir. 2007) ........................... 26

Manhattan Community Access Corp.

v. Halleck,

587 ___ U.S. ___, 139 S. Ct. 1921 (2019) .......... 5

Mendocino Environmental Center v.

Mendocino County,

192 F.3d 1283 (9th Cir. 1999) ......................... 27

Morse v. Frederick,

551 U.S. 393 (2007) ..................................... 6, 19

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ............................. 5, 6, 12

Reno v. ACLU,

521 U.S. 844 (1997) ......................................... 12

Rosenberg v. Rector and Visitors of

University of Virginia,

515 U.S. 819 (1995) ........................................... 5

J.S. ex rel Snyder v. Blue Mountain Sch.

District,

650 F.3d 915 (3d Cir. 2011) (en banc) ............ 12

Thomas v .Boad of Education, Granville

Central School District,

607 F.2d 1043 (2d Cir. 1979), cert.

denied, 444 U.S. 1081 (1980) ...................passim

v

TABLE OF AUTHORITIES—Continued

Page(s)

Tinker v. Des Moines Indepedent

Community School District,

393 U.S. 503 (1969) ..................................passim

T.V. ex rel. B.V. v. Smith-Green

Community School Corporation,

807 F.Supp. 2d 767 (N.D. Ind. 2011) .............. 28

Constitution

U.S. Const. amend. I ...................................passim

Other Authorities

Martha Aguirre Rubio & Raj Salhotra,

Students should have a say in next HISD

Superintendent, HOUSTON CHRONICLE

(Mar. 25, 2018), https://www.houstonchr

onicle.com/opinion/outlook/article/Studen

ts-should-have-say-in-next-HISD-12777

894.php ............................................................ 24

Monica Anderson & Jingjing Jiang, Teens,

Social Media & Technology 2018, PEW

RESEARCH CENTER (May 31, 2018),

https://www.pewresearch.org/internet/20

18/05/31/teens-social-media-technology2018 ................................................................. 23

Brooke Auxier, Activism On Social Media

Varies By Race And Ethnicity, Age,

Political Party, The Pew Research Center

(July 13, 2020), https://pewrsr.ch/304H

Thw .............................................................. 9, 10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

David Coulby, Tim Harper, PREVENTING

CLASSROOM

DISRUPTION:

POLICY,

PRACTICE AND EVALUATION IN URBAN

SCHOOLS

(Routledge

2012)

(first

published in 1987)...................................... 12-13

Carolyn Elefant & Nicole Black, Social

Media For Lawyers: The Next Frontier Xv

(2010) ................................................................. 8

Robert Everhart, Understanding Student

Disruption and Classroom Control, 57

HARV. EDUC. REV. 77 (1987) ........................... 13

Christine Greenhow and Emilia Askari,

Learning and Teaching with Social

Network Sites: A Decade of Research in K12 Related Education, 22 EDUCATION AND

INFORMATION TECHNOLOGIES 623 (2017) ....... 14

Michael J. Grygiel, Back to the Future: The

Second Circuit’s First Amendment

Lessons for Public Student Digital

Speech, 71 SYRACUSE L. REV. 1

(forthcoming 2021) .................................... 20, 25

Kentucky HB 178 (March 29, 2021) .................. 11

National Center for Education Statistics,

U.S. Dep’t of Educ., NCES 2020-063,

Indicators of School Crime and Safety:

2019 (2020) ................................................ 13, 14

Mary-Rose Papandrea, Student Speech

Rights in the Digital Age, 60 FLA. L. REV.

1027 (2008) ........................................................ 7

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Emanuelle Sippy and Sanaa Kahloon, On

the Kentucky school board and in their

communities, youth are making their

voices heard, COURIER-JOURNAL (2020),

https://courier-journal.com/story/opinion/

2020/10/09/kbe-kentucky-youth-forefronttodays-student-voice-movement/5902792

002/ ............................................................. 23-24

Arivumani Srivastava, School tax credit

bill will make Ky schools more unequal.

Don’t override governor’s veto, LEXINGTON

HERALD LEADER (Mar. 26, 2021), https://

www.kentucky.com/opinion/op-ed/article

250227545.html .............................................. 24

Student Voice, Roadmap to Authentically

Engage Youth Voice in the U.S.

Department of Education, https://www.

stuvoice.org/resources/youth-voice-in-edreport (last visited March 30, 2021) ................. 9

Kevin M. Thomas, Blanche W. O’Bannon &

Natalie Bolton, Cell Phones in the

Classroom: Teachers’ Perspectives of

Inclusion, Benefits, and Barriers, 30

COMPUTERS IN THE SCHOOLS 295 (2013) .... 14-15

Emily Gold Waldman, Badmouthing

Authority: Hostile Speech About School

Officials and the Limits of School

Restrictions, 19 WM. & MARY BILL OF RTS.

J. 591 (2011) .................................................... 27

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Emily Gold Waldman, Regulating Student

Speech: Suppression Versus Punishment,

85 Ind. L. J. 1113 (Summer 2010) .................. 25

Antoine Van Den Beemt, Marieke Thurlings

& Myrthe Willems, Towards An Understanding Of Social Media Use In The

Classroom: A Literature Review, 29

TECHNOLOGY, PEDAGOGY AND EDUCATION

35 (2020) .......................................................... 14

INTEREST OF AMICI CURIAE1

Amici Curiae are student activist organizations

dedicated to the pursuit of social justice:

The Houston Independent School District

Student Congress (HISD StuCon), an unincorporated association, represents more than 215,000

students in the largest school district in Texas.

Founded in 2014, HISD StuCon is an independent

student-run, student-led organization that pushes

stakeholders across Houston and the State of Texas to

take students seriously and facilitate their agency.

Over the years, HISD StuCon’s high school students

have filed an amicus brief in the Texas Supreme

Court, have testified in the Texas Legislature, and

have regularly spoken at HISD school board meetings

on issues that directly impact their lives--such as

school inequity, student mental health, coronavirus

reopening plans, and student free speech.

The Kentucky Student Voice Team supports

students as research, policy, and advocacy partners

working to ensure that Kentucky’s education system

is as equitable, just, and excellent as it can be.

Consisting of approximately 100 self-selected youth

from across the state, it was formed in 2012, was

incubated until 2020 by The Prichard Committee

for Academic Excellence, and was incorporated as a

youth-led independent organization in 2021. The

1

Pursuant to Sup. Ct. R. 37, counsel pro bono publico for amici

curiae state that no party’s counsel authored this brief in whole

or in part, no party or party’s counsel made a monetary contribution intended to fund the preparation or submission of this

brief, and no person other than counsel for amici curie made a

monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing

of the brief.

2

organization has filed for 501(c)(3) status, and the

Bluegrass Community Foundation serves as its fiscal

sponsor.

Its website is located at https://www.

kystudentvoiceteam.org/home.

March For Our Lives Action Fund is a 501(c)(4)

social welfare organization incorporated in Delaware.

Since February 2018, students from across the United

States have called for common-sense gun legislation

reforms that will save the lives of more than 3,000

young people each year, including implementing

universal, comprehensive background checks; creating a searchable database for gun owners; investing

in violence intervention programs, specifically in

disenfranchised communities; funding the Centers for

Disease Control to research gun violence so that

reform policies are backed up by data; and banning

high-capacity magazines and semi-automatic assault

rifles. The organization’s informational website can be

found at www.marchforourlives.com.

Students for Sensible Drug Policy (SSDP) is

the largest global youth-led network dedicated to

ending the War on Drugs. At its heart, SSDP is a

grassroots organization, led by a Board of Directors

primarily elected by and from our student and youth

members. It brings young people of all political and

ideological orientations together to have honest conversations about drugs and drug policy. SSDP creates

change by providing a platform where members

collaborate, communicate, share resources with, and

coach each other to generate policy change, deliver

honest drug education, and promote harm reduction.

Founded in 1998, SSDP is comprised of thousands

of members in hundreds of communities around

the globe. The organization’s website is located at

https://ssdp.org/about/.

3

Student Voice is a by-students, for-students

501(c)(3) nonprofit organization incorporated in

Delaware that works in all 50 states to equip students

as storytellers, organizers, and institutional partners

who advocate for student-driven solutions to

educational inequity. Through direct civic action,

Student Voice helps students hold their schools and

surrounding communities accountable to the Student

Bill of Rights and prepares them to become lifelong

agents of social and political change. The organization’s website is StuVoice.org, and it can be followed

on social media at @Stu_Voice and #StuVoice.

Amici are unified in their commitment to progressive reform initiatives in the areas in which their

respective missions are focused, and their use of social

media in communicating their messages to fellow

students and the general public is instrumental to

the achievement of their policy objectives. With

memberships composed of public high school students,

amici depend on the First Amendment principle

established in B.L. ex rel. Levy v. Mahanoy Area Sch.

Dist., 964 F.3d 170 (3d Cir. 2020), for protection of

their often critical, provocative, and resistant out-ofschool speech from school punishment. Without the

“clarity and predictability” (id. at 188) afforded by

the ruling in Levy, amici’s constitutional rights will

inevitably be compromised as they refrain from

speaking out on controversial matters pertaining

to the operation of public school systems, to the

detriment of an informed community. The First

Amendment may not give a public high school student

the right to wear Cohen’s jacket in the classroom

setting, but it unquestionably protects a student’s

right to wear the same jacket outside of school or to

post the same profane anti-government message on

social media — even with the knowledge that the

4

message will likely come to the attention of school

officials. Cohen v. California, 403 U.S. 15 (1971)

(overturning breach of peace conviction of Vietnam

War protestor for wearing inside a courthouse a jacket

bearing the slogan “Fuck the Draft”).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Mahanoy Area School District’s (“School

District”) brief begins with the claim that this Court’s

landmark decision in Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503 (1969), does not prohibit

the nation’s public schools from regulating their

students’ speech outside of school whenever it results

in disruption inside the school. Pet. Br. 13-22.

Tethered to a string of ancient state Supreme Court

cases decided decades before Tinker, this argument

transmogrifies Tinker from a location-based to a

harm-based precedent. Id. at 15, 17-18. Its novelty

has caught the amici, who rely on Tinker’s restricted

application to the school environment to safeguard

their First Amendment rights, by surprise. Presumably it will also come as a surprise to this Court, which

has steadfastly limited public schools’ ability to punish

student speech that is “outside school-owned, operated, or -supervised channels and that is not

reasonably interpreted as bearing the school’s

imprimatur.” Levy v. Mahanoy Area Sch. Dist., 964

F.3d at 189 (Krause, J.).

According to Petitioner, because social media has

made the determination of the doctrinal “schoolhouse

gate” boundary more difficult in some cases — a

concern which is overstated — Tinker’s restrictions on

public school authority over student speech should be

abandoned depending on the “severity of the on-

5

campus harm” (Pet. Br. 18) attributed to the speech.

Even assuming that student expression in the “modern

public square” (Packingham v. North Carolina, 137

S. Ct. 1730, 1737 (2017)) of social media has, as

asserted by the United States, to some degree rendered

Tinker’s schoolhouse gate concept “metaphorical” (SG

Br. 13), that does not justify such a radical departure

from this Court’s public student speech jurisprudence.

Manhattan Community Access Corp. v. Halleck, 587

U.S. ___, 139 S. Ct. 1921, 1937 n.2 (2019) (Sotomayor,

J., dissenting) (“Regardless of whether something ‘is a

forum more in a metaphysical than in a spatial or

geographic sense, . . . the same [First Amendment]

principles are applicable.’”) (quoting Rosenberg v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 830

(1995)). The dramatic expansion of school authority

called for by Petitioner would “erase the dividing line

between speech ‘in the school context’ and beyond it,

a line which is vital to young people’s free speech

rights.’” Levy, 964 F.3d at 188 (citation omitted).

The preservation of that dividing line is vitally

important to the exercise of the amici’s First Amendment rights. Levy made explicit what was implicit in

Tinker: when students express themselves outside of

school and beyond school supervision, they are entitled

to full constitutional protection of their free speech

rights the same as any other citizen — no matter how

“inappropriate, uncouth, or provocative” their expression. Id. at 189. Otherwise, as underscored in Levy,

students confronted with the potential application of

Tinker’s “material and substantial disruption” test

will censor their off-campus speech to avoid on-campus

punishment. Id. (“Holding Tinker inapplicable to

off-campus speech also offers the distinct advantage of

offering up-front clarity to students and school

officials.”).

6

This Court has acknowledged that the exchange of

information on social media is “integral to the fabric of

our modern society and culture.” Packingham, 137

S. Ct. at 1730. Nevertheless, the School District would

have the Court “swipe left” by ignoring the established

limitations its decisions have imposed on public

schools’ authority over their students off-campus

speech. As discussed more fully below, Tinker’s application, while appropriate in accounting for the special

characteristics of the educational environment, provides inadequate protection to students’ First Amendment rights outside of school. Further, if applied to

minimize constitutional scrutiny over student speech

tied to participation in extracurricular activities, it

will grant public school districts excessive authority to

punish student expression based on school officials’

retaliatory disapproval of its message — a path to

censorship repudiated by Justice Alito’s concurrence

in Morse v. Frederick, 551 U.S. 393, 423 (2007).

Amici agree that “B.L.’s Snap is not close to the line

of student speech that schools may regulate.” Levy,

964 F.3d at 195 (Ambro, J., concurring in the judgment). Yet, they fear that Tinker’s incautious expansion in the manner urged by Petitioner and the United

States will erode that line and subject their similarly

protected social advocacy to potential punishment by

their schools — especially when their speech criticizes

the effectiveness or fairness of school policies or the

conduct of school personnel. That would displace the

“up-front clarity” of Levy’s constitutional rule with

uncertainty and confusion, stifling the amici’s right

to speak out on controversial issues. Id. at 189. The

First Amendment, as applied in this Court’s public

student speech jurisprudence, prohibits such a result.

7

ARGUMENT

STUDENTS HAVE HISTORICALLY USED

THEIR VOICES IN THE VANGUARD OF

POLITICAL AND SOCIAL MOVEMENTS

A. Social Media Empowers Student Activism and Civic Engagement.

Students in our nation’s public schools play a critical

— albeit often overlooked and undervalued — role in

our democracy. Their civic engagement should not be

stifled simply because it challenges school authority.

Throughout history, student organizations such as the

amici have played instrumental roles in momentous

political and social movements. For decades, youth

across the country have used their voices to express

their views, impact policies, and effect change. During

the Civil Rights movement, for example, student

organizations staged sit-ins and marched in protest of

segregation laws, challenged racism during Freedom

Rides, and advocated for voter rights legislation.

Student organizations have consistently embraced

what former student activist and later Congressman

John Lewis called “good trouble” — fearless agitation

designed to provoke, challenge, and move the nation

forward. Students’ reliance on social media is not

only a critical component of social activism and

civic engagement, but important to their cultural

development and identity formation. See Mary-Rose

Papandrea, Student Speech Rights in the Digital Age,

60 FLA. L. REV. 1027, 1030 (2008) (“The importance of

these new technologies to the development of not only

their social and cultural connections but also their

identities should not be underestimated.”).

Student involvement in social movements has

endured over time. In each era, student organizations

8

have adapted to and embraced technology to promote

their initiatives and expand their reach. In today’s

digital age, the Internet provides “a global experience

that transcends language, culture, and philosophy,

permitting the transfer of information across borders

and time zones instantaneously.” Carolyn Elefant &

Nicole Black, Social Media For Lawyers: The Next

Frontier Xv (2010). Social media provides a platform

for users to express opinions and exchange points of

view on any number of issues — from the melancholy,

isolation, and frustrations of pandemic-induced

quarantine life, to the social, political, and ethical

perspectives implicated by government policy proposals, presidential debates, and other matters of

public concern. Popular social media platforms such

as Instagram, Twitter, and Facebook have become

participatory vehicles indispensable to the support of

social and political causes.

Social media has empowered American teens not

only to tell their stories and share their opinions, but

to generate support for their perspectives and mobilize

collective action on a national and even global scale.

While social movements of the 1950s used pamphlets,

telephone calls, and mass meetings to convey information and coordinate support from the public at

large, today’s activism thrives from online engagement and the use of social media to instantaneously

disseminate messages to what may be a global

audience.

For example, in 2016 the Houston Independent

School District Student Congress (HISD Student

Congress) organized a meme campaign on Facebook

that raised awareness about chronic underfunding in

their school district. In the caption under the posts,

the organization provided information regarding the

9

school district’s budget cuts and also provided a link to

its education summit, which addressed the budget

cuts and other issues impacting students in the

district. HISD Student Congress’s Instagram and

Twitter pages also post virtual whiteboards with

sticky notes — written by students — about issues,

common themes, and possible solutions on topics such

as mental health, school safety, and online learning.

Similarly, Student Voice developed a Roadmap to

Authentically Engage Youth Voice in the U.S. Department of Education, and used social media to reach

thousands of students from all 50 states through a

digital survey focused on a vision for the next

Department of Education. On Twitter, Student Voice

used the hashtag #StartWithStudents to raise awareness around its proposed recommendations to the

Department, which included incorporating students

on Department committees and roundtables and hiring a staff member for youth engagement. Student

Voice also used Facebook to broadcast a live online

press conference, where eight high school students

from Maryland, New York, Missouri, Kentucky,

Georgia, Montana, and California spoke about issues

in their schools that the Department could address by

meeting the organization’s recommendations.

According to a 2020 Pew Research Center study,

social media users under the age of 30 are more likely

than those above that age to use a hashtag related to

a political or social issue to encourage others to take

action on issues they see as important. Brooke Auxier,

Activism On Social Media Varies By Race And

Ethnicity, Age, Political Party, The Pew Research

Center (July 13, 2020). https://pewrsr.ch/304HThw.

The study also found Black and Hispanic social media

users, as compared to Caucasian users, to be nearly

10

twice as likely to find social media very or somewhat

important for finding other people who share their

views about personally salient issues. Id. There are

similar racial gaps when users are asked about the

importance of these sites as a means for getting

involved with issues they care about or as providing a

venue for the expression of their political opinions. Id.

Curtailing students’ First Amendment rights on social

media outside of school would therefore likely disproportionately impact students from historically underrepresented groups.

B. Students Are Best Positioned To Communicate Information About Public

Schools.

The right to speak out on matters of public concern

is deeply engrained in First Amendment law and

allows Americans to participate in self-governance.

The ability to communicate on social media has

immediate relevance for high school students, who are

not yet of voting age but have a constitutional right to

participate in public discourse, including on matters

directly impacting their demographic cohort.

High school students are best positioned to convey

information based on their day-to-day experience

regarding public school systems and their operation.

For example, in 2015, after lobbying for a Texas school

funding bill that was unsuccessful, then high school

students Zaakir Tameez and Amy Fan authored an

Amicus Brief on behalf of the HISD Student Congress

to the Texas Supreme Court addressing the lack of

adequate public school funding in their district. In

their brief, the students shed light on several issues

within the classroom, such as the lack of funding

for high school music programs, large class sizes,

outdated textbooks, and ineffective teaching at

11

various HISD schools. The organization also took to

social media to explain its position and was granted a

radio interview on the school district’s educational

deficiencies.

Similarly, the Kentucky Student Voice Team, as

part of a student advocacy campaign, used the handle

“#SaveOurSeats” on social media to spread awareness

on Kentucky House Bill 178, which would remove the

student and teacher representatives from the district’s

board of education. The organization’s Instagram

page included the telephone number for state lawmakers and provided supporters with a script to follow

when calling in support of preserving the non-voting

student and teacher board seats. Protection of these

seats directly impacts students’ representation and

participation in the Kentucky political process.

Finally, since 2018, Student Voice has trained more

than 50 student storytellers across the United States

through its Journalism Fellowship and Press Corps

in first-person opinion editorial writing and news

coverage about their experiences in schools. Student

Voice’s storytelling initiatives address their view that

public narratives around schools often rely on data,

research, and the dynamics of major policy actors,

without placing this information in the context of

students' lived experiences. Student Voice Journalism

Fellows flip the script of national conversations about

education, putting the experiences and needs of

students at the forefront through first-person storytelling in major outlets such as The Washington Post,

NBC News, and CNN.

Throughout history, American students have used

their speech in the vanguard of political and social

movements. Employment of their First Amendment

rights should not be impaired merely because they are

12

exercised on social media. The First Amendment

demands precisely the opposite. Reno v. ACLU, 521

U.S. 844, 870, 885 (1997); Packingham, 137 S. Ct. at

1736-37.

C. Social Science Evidence Disproves

That Social Media Contributes to

Student Misbehavior.

Federal court opinions tend to reflect a dystopian

conception of public secondary education, erroneously

attributed to the prevalence of social media, as

justification for the claim that prevention of public

schools’ degeneration into chaotic havens overrun with

undisciplined and uncontrollable students requires

new First Amendment exceptions. See, e.g., J.S. ex rel

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 95051 (3d Cir. 2011) (en banc) (Fisher, J., dissenting)

(“But with near-constant student access to social

networking sites on and off campus, when offensive

and malicious speech is directed at school officials and

disseminated online to the student body, it is

reasonable to anticipate an impact on the classroom

environment.”); Bell v. Itawamba Cnty. Sch. Bd., 799

F.3d 379, 435 (5th Cir. 2015) (en banc) (Prado, J.,

dissenting) (“I share the majority opinion’s concern

about the potentially harmful impact of off-campus

online speech on the on-campus lives of students. The

ever-increasing encroachment of off-campus online

speech and social-media speech into the campus,

classroom, and lives of school students cannot be

overstated.”). However, empirical evidence does not

support this view of the nation’s public schools.

Disruptions in the classroom existed long before the

advent of social media and have been the subject of

extensive studies. See, e.g., David Coulby, Tim

Harper, PREVENTING CLASSROOM DISRUPTION: POLICY,

13

PRACTICE AND EVALUATION IN URBAN SCHOOLS

(Routledge 2012) (first published in 1987); Robert

Everhart, Understanding Student Disruption and

Classroom Control, 57 HARVARD EDUCATIONAL REVIEW

77 (1987). The introduction of social media has had

little if any impact on in-school student behavior. To

the contrary, students are in fact less violent and

better behaved than at any time in modern history. In

its comprehensive report on school crime and safety

released in July 2020, the United States Department

of Education engaged in a detailed analysis of the

school environment in elementary and secondary

schools throughout the United States. National

Center for Education Statistics, U.S. Dep’t of Educ.,

NCES 2020-063, Indicators of School Crime and

Safety: 2019 (2020). The study found that during the

period from 1999-2000 to 2017-2018, student bullying

defined as occurring at least once a week decreased

from 29 percent to 14 percent, and student verbal

abuse of teachers defined as occurring at least once

a week decreased from 13 percent to 6 percent. Id.

at 48. Further, student sexual harassment of other

students defined as occurring at least once a week

decreased from 4 percent in 2003–2004 (the first year

of data collection for this issue) to 1 percent in 20172018. Id. at 66-68.

As this data demonstrates, the learning environment in our nation’s public schools has not become

unruly or unmanageable. Cf. Tinker, 393 U.S. at 525

(Black, J., dissenting) (“One does not need to be a

prophet or the son of a prophet to know that after the

Court’s holding today some students in Iowa schools

and indeed in all schools will be ready, able, and

willing to defy their teachers on practically all orders.

This is the more unfortunate for the schools since

groups of students all over the land are already

14

running loose, conducting break-ins, sit-ins, lie-ins

and smash-ins.”). In that same Department of Education study, teachers were asked to rate their ability to

manage classroom behavior. Id. The study found that

“93 percent of teachers reported that they were able to

make expectations about student behavior clear quite

a bit or a lot;” “88 percent reported that they were able

to get students to follow classroom rules quite a bit or

a lot;” “85 percent reported that they were able to

control disruptive behavior in the classroom quite a bit

or a lot;” and “80 percent reported that they were able

to calm a student who is disruptive or noisy quite a bit

or a lot.” Id. at 66. These statistics hardly indicate

that the public school system has become something

resembling a discipline-free zone because of students’

social media usage.

The misconceptions tainting the issue of off-campus

student digital expression simply do not stand up

against social science data collected over the years.

The evidence supports that social media usage has not

contributed to a decline in student behavior, nor has it

adversely impacted the school environment. The

reality is just the opposite, as numerous studies have

emphasized that social media is a powerful tool that

can be used to improve students’ learning experience.2

2

See, e.g., Antoine Van Den Beemt, Marieke Thurlings &

Myrthe Willems, Towards An Understanding Of Social Media

Use In The Classroom: A Literature Review, 29 TECHNOLOGY,

PEDAGOGY AND EDUCATION 35 (2020); Christine Greenhow and

Emilia Askari, Learning and Teaching with Social Network Sites:

A Decade of Research in K-12 Related Education, 22 EDUCATION

AND INFORMATION TECHNOLOGIES 623 (2017); Kevin M. Thomas ,

Blanche W. O’Bannon & Natalie Bolton, Cell Phones in the

Classroom: Teachers’ Perspectives of Inclusion, Benefits, and

Barriers, 30 COMPUTERS IN THE SCHOOLS 295 (2013) (finding that

15

TINKER’S APPLICATION OUTSIDE THE

SCHOOL ENVIRONMENT WOULD INFRINGE PUBLIC SCHOOL STUDENTS’

FIRST AMENDMENT RIGHTS

A. Tinker Should Not Be Extended to OffCampus Student Speech.

While Tinker’s narrow accommodation of the special

characteristics of the secondary educational environment is appropriate for student speech within the

schoolhouse gate, as well as for student speech at a

school-supervised or school-controlled event or setting,

it should not be extended to off-campus student

expression. To do so would “sweep far too much speech

into the realm of schools’ authority” and thereby result

in the chilling of students’ speech in violation of

their First Amendment rights. Levy, 964 F.3d at 187,

188-89. Indeed, applying Tinker outside of the school

environment will inhibit students’ expressive liberty

in contravention of this Court’s precedent, which in no

way suggests that school suzerainty may extend to

student speech in the community at large. To the

contrary, this Court’s quartet of public student speech

cases establishes that high school students’ speech

outside the school environment is presumptively

protected by the First Amendment unless the speech

is supervised or sponsored by the school.

As support for the novel proposition that Tinker

applies to student speech outside the schoolhouse

gate, both the School District (Pet. Br. 18-19) and the

United States (SG Br. 13-14) cite Grayned v. City

of Rockford, 408 U.S. 104 (1972). This reliance is

misplaced. In Grayned, this Court upheld the applica69% of teachers support the use of cell phones in the classroom

and presently use them for school-related work).

16

tion of an anti-noise ordinance to “approximately 200

people” who marched on a sidewalk “about 100 feet

from the school building [ ]” and whose activities

were noisy and diversionary to the extent that they

disrupted normal school activities by causing students

to be distracted in class and congregate near windows

to look at the protesters. Id. at 105. Petitioner and

the government aver that, since Grayned allowed the

punishment of speech by protesting adults outside a

school that had an impact inside the school, it a fortiori

supports Tinker’s application to punish speech by

students, irrespective of its location, that has a

“similarly disruptive effect” on school activities. SG

Br. 14; see also Pet. Br. 18-19. This argument glosses

over the fundamental point that Grayned involved a

content-neutral “time, place, and manner” regulation

intended to prohibit excessive noise volume from

interfering with orderly schoolhouse operations, and

in no way restricted expressive activity “before or after

the school session, while the student/faculty ‘audience’

enters and leaves the school.” Id. at 120 (emphasis

supplied). The ordinance’s application was limited to

“[n]oisy demonstrations” “next to a school, while

classes are in session[.]” Id. Thus, if the protesters

had engaged in the same activities a few blocks away

from the school — still outside of the schoolhouse gate

— the anti-noise ordinance would not have been

triggered. Id. (“Such expressive conduct may be

constitutionally protected at other places or times”).

Accordingly, Grayned is readily distinguishable and

fails to support Petitioner’s desire to extend Tinker to

off-campus speech wherever, whenever, and however

it occurs.

Further, in arguing that Tinker has never been

strictly confined to on-campus expression, the School

District attempts to evade Thomas v. Bd. of Educ.,

17

Granville Cent. Sch. Dist., 607 F.2d 1043 (2d Cir.

1979), cert. denied, 444 U.S. 1081 (1980), by contending that the decision “did not need to consider whether

Tinker applied to off-campus speech[.]” Pet. Br. 20.

We respectfully submit that this misreads the

Second Circuit’s holding in Thomas, which expressly

restricted Tinker’s application to student speech

deliberately introduced inside the school environment

because “when those charged with evaluating expression have a vested interest in its regulation, the

temptation to expand the otherwise precise and

narrow boundaries of punishable speech may prove

irresistible.” 607 F.2d at 1048. Thomas could hardly

be clearer that when “school officials have ventured

out of the school yard and into the general community

where the freedom accorded expression is at its zenith,

their actions must be evaluated by the principles that

bind government officials in the public arena.” Id. at

1050.

B. B.L.’s Speech Away From School Was

Impermissibly Punished Based on School

Authorities’ Disapproval of Her Choice of

Language.

It seems unlikely that the School District would

have punished B.L. had she Snapchatted “Screw

school screw softball screw cheer screw everything,”

which indicates that school authorities punished her

owing to their disapproval of her choice of profane

language outside of the school environment, where

it should be subject solely to parental control. See

Thomas, 607 F.2d at 1051 (“While these activities are

certainly the proper subjects of parental discipline, the

First Amendment forbids public school administrators

and teachers from regulating the material to which

a child is exposed after he leaves school each

18

afternoon.”). Importantly, there was no evidence of

disruption to the learning process or school activities

in Levy, merely the implausible claims that B.L.’s

snaps interfered with the “morale” and “chemistry” of

the cheerleading squad and violated viewpoint-based

team rules imposed by the School District on

cheerleaders. Levy, 964 F.3d at 184 n.10, 176. In other

words, Petitioner appears to have relied on this

Court’s rationale in Bethel Sch. Dist. No. 403 v. Fraser,

which allows for the regulation of “lewd, indecent,

or offensive” student speech in order to “teach by

example the shared values of a civilized social order.”

478 U.S. 675, 683 (1986); see also Cuff v. Valley Centr.

Sch. Dist., 677 F.3d 109, 188 (2d Cir. 2012) (Pooler, J.,

dissenting) (summarizing Fraser as “explain[ing] what

every parent already knows” because the holding was

based on “‘society’s countervailing interest in teaching

students the boundaries of socially appropriate behavior’”) (quoting Fraser, 478 U.S. at 681). However,

Fraser’s holding was strictly limited to an in-school

setting where a student gave a speech during a

mandatory assembly that included approximately 600

high school students, including many who were as

young as 14, as “part of a school sponsored educational

program in self-government.” 478 U.S. at 677. As the

Levy court correctly concluded, “Fraser does not apply

to off-campus speech.” 964 F.3d at 181.

In sharp contrast to Fraser, where the school needed

to dissociate itself from Matthew Fraser’s in-school

oratory presented to a captive audience of impressionable students, B.L.’s snap was an off-campus

expression of personal frustration by a high school

student who did not make her school’s varsity

cheerleading squad. By imposing punishment based

on disapproval of her choice of language outside the

school environment, the School District impermissibly

19

extended Fraser’s rationale to off-campus speech

delivered to a self-selected group of her social media

friends. Such an unwarranted expansion of school

authority runs headlong into Justice Alito’s emphatic

admonition in Morse that allowing school officials

to rely on a public school district’s self-defined

“educational mission” as a basis for regulating student

speech would amount to an alarming invitation to

viewpoint-based censorship that “strikes at the very

heart of the First Amendment.” Morse, 551 U.S. at

423 (Alito, J., concurring) (emphasis supplied). Stated

another way, “[i]f mere incompatibility with the

school’s pedagogical message were a constitutionally

sufficient justification for the suppression of student

speech,” a wide variety of protected expression could

be suppressed by school officials. Hazelwood Sch. Dist.

v. Kuhlmeier, 484 U.S. 260, 280 (1988) (Brennan, J.,

dissenting).

The First Amendment prohibits public school officials from censoring student expression outside the

school environment that employs objectionable or

inappropriate language regarded as incompatible with

a school’s official stance derived from “the inculcation

of whatever political and social views” (Morse, 551

U.S. at 423 (Alito, J., concurring)) are held by local

school boards — a constitutional imperative

scrupulously adhered to by the Levy majority.

C. Petitioner’s Boundless “Targeting”

Rubric Does Not Justify the Extension

of School Authority to Off-Campus

Public Student Speech.

A common rationale for the extension of school

disciplinary authority to social media expression

beyond the schoolhouse gate is premised on the notion

that schools need to be able to regulate speech that

20

“targets” the school or that is “aimed” or “directed” at

the school. See, e.g.¸ Bell v. Itawamba Cnty. Sch. Bd.,

799 F.3d at 393. As framed by Petitioner, this would

allow Tinker’s application to off-campus speech that

is “intentionally directed” at the school and that

“foreseeably reach[es]”3 the school environment. Pet.

Br. 27. But this elastic proposal provides no limit

whatsoever on school authority. For public high school

students — whose lives predictably center around

their school, school activities, and social connections

with their classmates — such an approach will

inevitably be over-inclusive.4 It renders speech that

would otherwise be constitutionally protected

vulnerable to the regulatory whims of school officials

any time the speech is about school affairs, discusses

school personnel, or mentions school students, opening

the schoolhouse gate to a broad array of student

expression in a manner never contemplated by Tinker

and disallowed by the First Amendment.

3

The provenance of the reasonable foreseeability element

espoused by Petitioner, which has infiltrated federal appellate

court public student digital speech decisions, traces to Judge

Newman’s suggestion in a footnote to the last sentence of his

concurrence in Thomas. 607 F.2d at 1058 n.13 (Newman, J.,

concurring). For a critique of this basic negligence concept’s

application to off-campus public student social media expression,

which has extended far beyond the original narrow parameters

proposed by Judge Newman, see Michael J. Grygiel, Back to the

Future: The Second Circuit’s First Amendment Lessons for Public

Student Digital Speech, 71 SYRACUSE L. REV. 1 (forthcoming April

2021).

4

The Solicitor General concedes this common-sense point. SG

Br. 23 (“Students spend much of their lives in school, or at school

activities, or doing schoolwork at home; one might therefore

naturally expect much of their speech to ‘target’ the school

environment in some fashion.”).

21

The application of Petitioner’s proposed limitation

confirms its constitutional infirmity. The School

District argues that whenever a student speaker

“refer[s] to school affairs or send[s] speech directly to

classmates” she is “direct[ing]” the speech at the

school. Pet. Br. 28. According to this reasoning, a

breathtaking scope of off-campus student expression

would be subject to school control.5 In the social media

context, the nature of many digital platforms,

including Snapchat, simply does not support the

targeting rationale. Posting a snap to a story, or

posting something on most social media platforms, is

altogether different from intentionally communicating

a digital message within a school-controlled environment or a school-supervised setting. It is indistinguishable for First Amendment purposes from a

student’s commentary about school affairs on a local

public affairs cable television program. Even though

many of the student’s classmates may be included in

the broadcast’s audience, and anything controversial

or critical that is said about the school or its personnel

is likely to come to the attention of school authorities,

that does not mean the student “targeted her speech

at campus” (Pet. Br. 30) merely by offering her

viewpoint on the program. The same is true even

when considering the features of social media plat5

Notably, the Solicitor General disavows the School District’s

position in this regard, recognizing that Petitioner’s invocation of

due process principles will not prevent the exposure of a “large

sphere of off-campus student communication” to school discipline,

in derogation of Tinker and in violation of the First Amendment.

SG Br. 21; see also id. at 22 (“There is, in short, no basis for

treating the immense amount of off-campus speech by students

as school speech that would potentially be subject to discipline,

even if it is about the school or might have some effect on other

students or the school environment.”).

22

forms more in line with “sending speech directly” (Pet.

Br. 28) to other students — e.g., by texting a message

to someone who happens to be a classmate. The fact

that a student may send a social media message

expressing frustration about a bad day at school to her

classmates, on a personal device after school hours,

does not mean that she has “directed” her speech at

the school. As the School District would have it, that

speech is potentially punishable.

In a pre-social media world, had the facts of this case

shown that B.L. delivered 250 leaflets to the homes of

the individuals in her social network, school officials

would not be authorized to punish her speech,

notwithstanding any subsequent disruptive impact

on the school environment. As the Third Circuit

emphasized in a decision that preceded Levy, “[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.” Layshock ex rel. Layshock v. Hermitage

Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc).

The First Amendment does not tolerate a student’s

punishment for off-campus criticism of her teacher or

coach communicated to a group of social media users

merely because some of her classmates are included in

that group.

The Court should reject the misguided “targeting”

rationale proposed by the School District, as Levy and

other courts have. Levy, 964 F.3d at 180 (“J.S. and

Layshock yield the insight that a student’s online

speech is not rendered ‘on campus’ simply because it

involves the school, mentions teachers or administrators, is shared with or accessible to students, or

23

reaches the school environment”). In today’s world,

students’ use of social media is ubiquitous.6 Their

social media profiles are nothing less than an extension of their personal voices and identities. In fact, as

used by student groups such as the amici, social media

is today’s telephone, underground newspaper, and

bullhorn all rolled into one — digital samzidat

amplifying the voices of the nation’s and the world’s

youth. Given the historical role that young citizens

have played in effecting positive change in our

country, a role which they will no doubt continue

to play through the use of social media platforms,

insulating students’ off-campus digital speech from

school control is vital to ensuring the protection of

their First Amendment rights as technologies and

methods of communication continue to evolve. See

Levy, 964 F.3d at 179-80 (noting that the Court

consistently applies established First Amendment

principles in the face of new communications technologies). Snapchat is not the equivalent of a virtual

classroom, nor is it a school-sponsored forum. Posting

a snap about school affairs or another student while

shopping at the mall, for example, does not convert

that shopping mall into the equivalent of a school

auditorium or cafeteria. A student does not target her

school when she posts on social media any more than

she does when she authors an op-ed in a local

newspaper, even if the op-ed criticizes a school

program or her athletic coach’s decision-making.7 The

6

Monica Anderson & Jingjing Jiang, Teens, Social Media &

Technology 2018, PEW RESEARCH CENTER (May 31, 2018),

https://www.pewresearch.org/internet/2018/05/31/teens-socialmedia-technology-2018.

7

Student members of the amici organizations have often

published op-eds in their local newspapers to discuss issues

affecting their schools. See, e.g., Emanuelle Sippy & Sanaa

24

“targeting” rationale undermines the foundation set

by Tinker by substituting a legal reality in which

public schools may potentially regulate anything that

student activist groups like the amici may say that

touches on school affairs, regardless of where or when

the group happens to say it, any time a school official

decides that the speech is inappropriate or disapproves of its message.

Indeed, as perhaps

unwittingly acknowledged by Petitioner, the only safe

course is if the off-campus digital speaker “does not

share the[ir] [communication] with anyone[.]” Pet. Br.

29. It is difficult to conceive of a more serious affront

to the First Amendment.

D. Participation in Extracurricular Activities Does Not Relinquish a Student’s

First Amendment Rights.

The United States contends that off-campus student

expression qualifies as “school speech” subject to

Tinker’s application when it “intentionally targets

specific school functions or programs regarding

matters essential to or inherent in the functions or

programs themselves[.]” SG Br. 24. This morphs into

the further claim that a public school may punish an

Kahloon, On the Kentucky school board and in their

communities, youth are making their voices heard, COURIERJOURNAL (Oct. 9, 2020), https://courier-journal.com/story/

opinion/2020/10/09/kbe-kentucky-youth-forefront-todays-student

-voice-movement/5902792002/; Arivumani Srivastava, School tax

credit bill will make Ky schools more unequal. Don’t override

governor’s veto, LEXINGTON HERALD LEADER (Mar. 26, 2021, 8:44

AM), https://www.kentucky.com/opinion/op-ed/article250227545.

html; Martha Aguirre Rubio & Raj Salhotra, Students should

have a say in next HISD Superintendent, HOUSTON CHRONICLE

(Mar. 25, 2018, 10:51 AM), https://www.houstonchronicle.com/

opinion/outlook/article/Students-should-have-say-in-next-HISD12777894.php

25

athletic team member who calls out the coach’s

competence on social media, despite acknowledging

that the same speech would be protected if posted

by another member of the student body who is not

a teammate. Id. at 25-26. Even putting aside the

obvious equal protection concerns raised by such

disparate treatment of student speakers, this argument is constitutionally problematic. See LaTrieste

Restaurant and Cabaret, Inc. v. Vill. of Port Chester,

40 F.3d 587, 590 (2d Cir. 1994) (equal protection

violation arises when “(1) the person, compared with

others similarly situated, was selectively treated;

and (2) that such selective treatment was based on

impermissible considerations such as . . . intent to

inhibit or punish the exercise of constitutional rights”)

(internal quotation omitted).

First, it “necessarily expands schools’ regulatory

authority in situations where off-campus student

speech criticizes a school-sponsored program or

activity — no matter how valid or legitimate the

criticism — and the punishment involves disqualification from or ineligibility for that same program or

activity.” Michael J. Grygiel, Back To the Future: The

Second Circuit’s First Amendment Lessons for Public

Student Digital Speech, 71 SYRACUSE L. REV. 1

(forthcoming 2021). As a prominent commentator has

stated, the circularity of the penalty justification is

self-evident: “[i]f the student speech opposes some

aspect of a school activity, the school — as long as the

punishment relates only to the activity in question —

can then justify its actions simply by pointing to the

speech’s potential to interfere with that particular

activity. This, of course, will often be easy — almost

tautological — to show.” Emily Gold Waldman,

Regulating Student Speech: Suppression Versus

Punishment, 85 Ind. L. J. 1113, 1129 (Summer 2010);

26

see also Levy, 964 F.3d at 188 (criticizing Tinker’s

“tautological” application to off-campus expression).

Allowing schools to leverage participation in

extracurricular activities to conform a student’s

off-campus speech to a school-approved narrative

portends disastrous consequences for a student’s

willingness to speak up in the face of, for example,

sexual misconduct or abusive conduct by a high school

coach or other adult in a position of school authority.

Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379

(student’s YouTube rap video called out two high

school teachers/coaches for inappropriate conduct with

female students); Lowery v. Euverard, 497 F.3d 584,

596 (6th Cir. 2007) (high school football players signed

petition criticizing head coach’s abusive conduct and

violations of school athletic rules). As a result, student

speech that offers informed and valuable criticism

about a school program or sports team runs a real

risk of being suppressed under the guise that it is

disruptive to an “essential” or “inherent” school

function or program. This would allow school districts

to keep under wraps a wide swath of student whistleblowing exposing matters about which taxpayers are

entitled to know.

Second, participation in extracurricular activities

cannot equate to a waiver of a student’s First

Amendment rights. Levy, 964 F3d 192-94. It has long

been established that “‘courts indulge every reasonable presumption against waiver of fundamental

constitutional rights and . . . ‘do not presume

acquiescence in the loss of fundamental rights.’”

Johnson v. Zerbst, 304 U.S. 458, 464 (1983) (footnotes

omitted); see also Levy, 964 F.3d at 183 (rejecting

proposition that “B.L. abdicated her First Amendment

right to speak as a cheerleader”).

27

Third, in stripping B.L. from participation on the

cheerleading team, the School District denied her the

ability to participate in a school activity that mattered

to her, and did so solely because of what she said in

her snaps. When the government punishes someone

based on her speech, the comparative leniency of the

punishment — e.g., removal from a sports team rather

than suspension from school — does not control the

constitutional inquiry. Levy, 964 F.3d at 183; see

also Emily Gold Waldman, Badmouthing Authority:

Hostile Speech About School Officials and the Limits

of School Restrictions, 19 WM. & MARY BILL OF RTS. J.

591, 610 (2011) (“the notion that the free speech

inquiry should be ratcheted down when the punishment relates only to an extracurricular activity” raises

significant constitutional concerns) (footnote omitted).

As this Court has recognized, “even minor punishments can chill protected speech.” Ashcroft v. Free

Speech Coalition, 535 U.S. 234, 244 (2002). The issue

is not whether the speaker was deprived of a

government benefit, but whether the punishment at

issue would deter protected speech going forward.

Mendocino Envntl. Ctr. v. Mendocino Cnty., 192 F.3d

1283, 1300 (9th Cir. 1999) (“[T]he proper inquiry asks

whether an official’s acts would chill or silence a

person of ordinary firmness from future First

Amendment activities.”) (internal quotations omitted).

The constitutional right at issue is freedom

of expression, not that of participation in

extracurricular activities. That there is no

constitutional right to participate in . . .

extracurricular activities may be pertinent to

an analysis of other sorts of constitutional

claims, . . . but as Tinker itself notes, not to a

freedom of expression claim.

28

T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp., 807

F.Supp. 2d 767, 780 (N.D. Ind. 2011) (footnote

omitted).

If the government’s position were to prevail,

students would be confronted with a stark choice:

participate in extracurricular activities that are a

critical aspect of the competitive college admissions

process, or retain their right to unrestricted free

speech outside of school. The Levy court correctly

determined that no high school student should have to

make such a choice. 964 F.3d at 182 (“[W]e see no

sound reason why we should graft an extracurricular

distinction onto our case law.”).

MISFIRED DISCIPLINARY DECISIONS

CAUSE IRREPARABLE HARM TO THE

“ONCE IN A LIFETIME” EXPERIENCE

REPRESENTED BY HIGH SCHOOL

It is typically impossible as well as impractical for a

student to obtain judicial review and meaningful

redress prior to being harmed, often irreparably, by

a public school’s disciplinary decision. Thomas, 607

F.2d at 1052 (“Where, as here, the punishment is

virtually terminated before judicial review can be

obtained, many students will be content to suffer in

silence, a silence that may stifle future expression

as well.”). The moment B.L. was disciplined for her

Snapchat in 2017, she became stigmatized as a

disruptor with a formal record of the same. Only now,

four years later, and representing one of a select few

students who has persisted in seeking to vindicate her

First Amendment rights through the civil litigation

process, will she have the opportunity to shed that

label. Unfortunately, whatever negative impact B.L.’s

high school record may have had on her immediate

29

educational or employment prospects cannot be

meaningfully undone after the fact by this Court.

A perhaps overlooked but nevertheless important

point is that we leave to the same officials who handed

down B.L.’s disciplinary decision the authority to

memorialize it in her student record. We expect,

perhaps naively, that they will do so fairly. This is a

critical part of the process because B.L., or any other

student in her position, must answer affirmatively in

responding to college or employment applications

questioning whether they have ever been disciplined.

Unfortunately, it is unlikely that a typical student’s

disciplinary record is worded in a way that provides

them with the benefit of the doubt in the eyes of thirdparty stakeholders who have a hand in shaping a

student’s future, such as a college admissions officer

or potential employer. In such instances it is fair to

assume that the student’s disciplinary record will

state something along the lines of “violated policy on

student conduct” rather than “used a swear word

on social media while outside of school, in a nonthreatening manner and directed at nobody in

particular.” While each characterization may arguably be considered accurate, there is a tremendous

difference in how each statement is likely to be

received by the uninformed reader and, as a consequence, how the student is impacted. It is no stretch

to assume that a third-party reviewer is more likely to

eliminate the student from consideration if presented

with the former given that it appears, on its face, to

denote a more serious violation, whereas that same

individual is perhaps more likely to pause and

question the gravity or validity of the sanction if

presented with the context afforded by the latter.

30

Leaving these decisions to the same school administrators responsible for imposing the punishment in

the first place is a gamble with the student’s future

that the public student speech framework should not

permit us to undertake. Thomas, 607 F.2d at 1050-51.

These young people are at a critical point in their

formative years, the unique experience of which

cannot be recovered by a favorable court decision

eventually rendered years down the line. Because

judicial redress cannot adequately restore what a

school has wrongfully taken away, it is no answer to

say that a student punished for off-campus speech can

seek correction through the legal process years after

the fact. The opportunities lost to the student are

irretrievable; she cannot go back and join the cheer

squad, take another crack at a high school sports team,

recreate the college admissions process, or otherwise

redo this important part of her life. Thus, the law

should robustly protect in the first instance First

Amendment rights exercised outside the public school

setting because a student’s available remedies are

inadequate.

The principle upheld in Levy does

precisely that.

31

CONCLUSION

Based on the foregoing reasons, the judgment of

the Third Circuit should be affirmed.

Respectfully submitted,

VINCENT H. CHIEFFO

CAROLINE KORPIEL

1840 Century Park East

Suite 1900

Los Angeles, CA 90067

(310) 586-7700

chieffov@gtlaw.com

MICHAEL J. GRYGIEL

Counsel of Record

GREENBERG TRAURIG, LLP

54 State Street, 6th Floor

Albany, NY 12207

(518) 689-1400

grygielm@gtlaw.com

JASON K. HICKS

10845 Griffith Peak Drive

Suite 600

Las Vegas, NV 89135

(702) 792-3773

hicksja@gtlaw.com

KATIE TIPPER-MCWHORTER

1000 Louisiana Street

Suite 1700

Houston, TX 7700

(305) 579-0500

tipperk@gtlaw.com

GEROND J. LAWRENCE

Terminus 200

3333 Piedmont Road NE

Suite 2500

Atlanta, GA 30305

(678) 553-2100

lawrencege@gtlaw.com

JORGE COSS

2375 East Camelback Road

Suite 700

Phoenix, AZ 85016

(602) 445-8000

cossj@gtlaw.com

BETH A. NORROW

FRANCESCA CILIBERTI-AYRES 450 South Orange Avenue

1144 15th Street, Suite 3300 Suite 650

Denver, CO 80202

Orlando, FL 32801

(303) 572-6500

(407) 420-1000

ciliberti-ayresf@gtlaw.com

norrowb@gtlaw.com

Attorneys Pro Bono Publico for Amici Curiae

March 31, 2021