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Op-Ed: SCOTUS decision a victory for student free speech

Op-Ed by Jennifer Lauren Hamad


The F-bombs that a frustrated cheerleader dropped in a Snapchat post after failing to land a spot on the varsity cheerleading team at her school recently detonated in the U.S. Supreme Court into a victory for student free speech and student activist organizations, like the one I led, that collaborated in submitting an amicus curiae brief to the Supreme Court.

In the historic B.L. v. Mahanoy Area School District case, the Court ruled that the school’s actions in punishing Levy for her undisruptive off-campus speech were unconstitutional. Although student organizations are overwhelmingly relieved by this ruling, we remain unnerved by the dystopian reality of what could have been had the Courts ruled in favor of Mahanoy.

Social media has become the indispensable virtual voice of youth that has galvanized youth activism by making national and global exchange of views possible. However, if public schools succeeded in punishing off-campus speech, social media would have become synonymous with a virtual school classroom where schools have authority to regulate speech just as they would in a physical classroom. This would blur the metaphorical dividing line that separates speech "in the school context and beyond it" (established by Tinker v. Des Moines), leaving students without clarity on when they are afforded their full constitutional right to free speech. This ambiguity would become oppressive and subject students to the feeling that their speech is regulated 24/7, effectively stifling youth activism and threatening the existence of the student organizations that depend upon it.

Although Tinker’s precedent established that a school could punish students for speech if it disrupts the educational process, Levy’s case quickly revealed that Tinker could be applied to stifle what the late Congressman John Lewis deemed to be "good trouble"- "fearless agitation designed to provoke, challenge, and move the nation forward". Instead of restricting Tinker’s application to off-campus speech that disrupts the educational environment (e.g. threats of violence, harassment, bullying, etc.), schools could turn any off-campus political/social activism or speech they disapprove of into a case of “disruption.” Student speech that criticizes an educational institution, its policies, or the behavior of its personnel would become particularly vulnerable to retaliatory disciplinary action from schools.

Perhaps one of the most concerning assertions made by the Mahanoy Area School District was that a student "targets" or "directs speech at a school" anytime he or she "refers to school affairs or sends speech directed to classmates". This suggests students "target" their school by merely offering their opinion about a school program or policy or discussing school affairs with their peers.

Under this notion, my organization would not have been able to speak at board meetings, lobby for educational legislation, speak out about issues like student mental health, write op-eds, speak to reporters, or merely share stories amongst members without the imminent threat of punishment. This excessive and unwarranted control of speech would inevitably disenfranchise and disempower students.

A school could overextend its disciplinary power to punish any and all speech that concerns the educational process. Such far-reaching censorship would mean the beginning of the end of American democracy, as our public schools would quickly transform from the cradles of democracy into totalitarian enclaves where students become accustomed to an imbalance of power that strips them of their basic freedoms.

As the looming threat of punishment causes students to decline to share their opinions and partake in activism, vital student representation would be lost. This strong push to punish off-campus student expression related to education is alarming and would suppress eyewitness accounts of issues in our American public schools that would otherwise be revealed through the sharing of student experiences through social and political youth activism. Criticism of everything from educational inequities to school safety issues could be hidden from public knowledge if off-campus student speech were regulated and punishable by schools, resulting in the erasure of the student narrative.

Conveying the student narrative is a powerful tool used by students to inform decision-making on policies that directly affect their education. In the absence of student voice, students would be subjected to policies implemented without their input. Before schools know it, students would be crying "NO EDUCATION WITHOUT STUDENT REPRESENTATION!," echoing the sentiments of our American Revolutionary forefathers.



Jennifer Lauren Hamad served as Speaker of the Houston Independent School District Student Congress that represents HISD’s 215,000+ students and collaborated with other student voice organizations to submit an amicus curiae brief to the U.S. Supreme Court for the B.L. v. Mahanoy Area School District case. She is also an incoming freshman at Stanford University.

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