In 1964, in the process of defining “obscenity,” the late Justice Potter Stewart famously declared, “I know it when I see it.” Jacobellis v Ohio, 378 U. S. 184, 197 (1964). Perhaps the internet and America’s magazine racks are a testament to efficacy of such an untethered approach to defining the scope of constitutional rights. If the lines of a constitutional entitlement are vague enough, the government simply will be discouraged from taking a firm stance on the issue.
The over-eager constitutionalization and regulation of education law has done a similar favor for public education. The Supreme Court’s recent decision in Mahoney Area School District v B. L., ___ U. S. ___ (2021) is an example. There, a high school student took issue with her failure to make the varsity cheer team in clear and unmistakable, if vulgar, terms. She Snapchatted a picture of herself with a raised middle finger captioned, “F*** school and f*** cheer.” The cheer coach disciplined B. L. by removing her from the junior varsity cheer team. Naturally, this dispute could not be resolved except with input from the nation's highest court.
The Supreme Court’s decision, issued in June 23, 2021, informs us that public schools do not have plenary authority to discipline students for everything they do off campus, particularly for off-campus speech. No surprise. But when can a public discipline a student for off-campus behavior? The Court observed that the 50+ year old Tinker decision permits school districts to address off-campus behavior that materially disrupts classwork or interferes with the rights of others. A standard that was not met in this case. Then, in a splash of rule-making resembling the inkblots of a Rorschach test, the Court added four new rules to Tinker. School districts may also discipline students, said the Court: for off-campus speech that includes serious or severe bullying or harassment targeting particular individuals; for threats aimed at teachers or other students; for failures to follow rules concerning lessons, the writing of papers, or participation in on-line activities; and, for breaches of school security devices. Of course, those who have worked with high school students will immediately see how much troublesome off-campus behavior falls between these four wide cracks.
Justice Alito, apparently responding to the unsatisfactory ad-hoc logic of the majority’s decision, posited, in concurrence, that a public school’s ability to discipline students is, in all cases, based on a sliding scale of implicit parental consent. Implicit consent is highest when the students are in school, diminishes as they approach home, and is at its lowest ebb once they reach home. Justice Alito’s approach, because it has a clear theme, is more satisfying than majority’s rule-making. At the same time, Justice Alito offered no more certainty than majority and, also, opened up a door that may, or may not, make his implicit authority theory unworkable. For example, might a parent make a student discipline-proof by explicitly revoking the parent’s implicit permission to discipline the student?
Justice Thomas, dissenting, expressed wonder that none of the other Justices were willing to acknowledge that, for over 150 years, public schools in the United States performed quite well in a far less constitutionalized and regulated environment. After many years representing public schools, I find myself in Justice Thomas’ company this time.