Opinion: CJ Opinion

Legal experts: Stein misled the public on ‘bullying’ case brief

Attorney General Josh Stein, during a January 2017 swearing-in ceremony at the Executive Mansion. (CJ photo by Don Carrington)
Attorney General Josh Stein, during a January 2017 swearing-in ceremony at the Executive Mansion. (CJ photo by Don Carrington)

In typical Josh Stein fashion, the official taxpayer-funded press release from the Attorney General’s Office declared in big bold type: “Attorney General Josh Stein Fights to Protect Students from Bullying.”

The release announces Stein filed a friend-of-the-court brief urging the U.S. Supreme Court to “preserve schools’ ability to address cyberbullying and other forms of off-campus bullying that substantially affect students’ education.”

The brief was filed in Mahanoy Area School District v. B.L., a case concerning the ability of schools to punish students for off-campus speech.”

The press release states, “But the lower court in this case ruled that schools may never regulate students’ off-campus speech,” a grossly distorted claim counter to any plain reading of the recent court ruling at issue.

In fact, despite Stein’s hyperbolic claims, according to two highly respected constitutional experts, the case to be argued in front of the high court has nothing to do with bullying at all. It has to do with the government’s nearly unfettered ability to regulate and punish students to disfavored speech off-campus and away from school activities, specifically dealing with speech that’s not threatening or harassing. There is nothing about the case at hand that has anything to do with bullying.

“This is just another distressing instance of the left’s abandoning its traditional support for free expression and using bogus claims to suppress speech it doesn’t like,” says Jon Guze, senior fellow for Legal Studies at the John Locke Foundation.

“The student in this case made a crude social media post totally outside of school. It was tacky and tasteless, but tasteless isn’t the same thing as dangerous or disruptive,” added Jeanette Doran, president of the North Carolina Institute for Constitutional Law. “High school kids don’t lose all their rights just because they say or post dumb stuff and a school bureaucrat doesn’t like it.”

Background

In 2017, a Pennsylvania public school student was kicked off the junior varsity cheerleading squad for an online “Snapchat” posting that school officials believed was “negative,” “disrespectful,” and “demeaning.” Snapchat allows phone users to post images that are accessible only for short periods of time — ranging from one second to 24 hours —and are self-deleting. The post for which the cheerleader was punished was a photo of her and a friend at a convenience store holding up their middle fingers with lewd remarks superimposed on the photo. The post was only available to pre-selected friends of the student.

Her parents filed suit arguing that the school district had unconstitutionally punished her for speech made completely outside of the school that did not pose a risk of disruption.

In its landmark 1969 student speech decision, Tinker v. Des Moines Independent Community School District, the Supreme Court made clear that school administrators are generally forbidden from policing student speech except in a narrow set of exceptional circumstances: when (1) a student’s expression actually causes a substantial disruption on school premises; (2) school officials reasonably forecast a substantial disruption; or (3) the speech invades the rights of other students.

On March 21, 2019, Judge A. Richard Caputo granted the student a preliminary injunction forbidding the school from enforcing the suspension. “Simply put, the ability of a school to punish lewd or profane speech disappears once a student exits school grounds,” wrote Caputo.

In Mahanoy Area School District v. B.L., the 3rd Circuit Federal Court of Appeals went even further. It ruled that public schools cannot censor students’ off-campus speech based on a fear of disruption of school activities.

Obama-appointed Judge Cheryl Ann Krause wrote that various courts “have adopted tests that sweep far too much speech into the realm of schools’ authority,” especially given the reach of modern communications technology. She said the current legal framework lacked “clarity and predictability.”

Instead, Krause held that Tinker did not apply to off-campus speech, which she defined as “speech that is outside school-owned, operated, or supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”

This holding would be clear and easy to understand, she wrote. As for threatening or harassing speech, which was not at issue in the case, it “would no doubt raise different concerns and require consideration of other lines of First Amendment law.”   

The U.S. Supreme Court said it would hear this case.

While Stein and others claim the case is about bullying, Stein’s own brief filed with Democrat attorney generals from 25 states concedes:

“The Third Circuit was correct in recognizing that “off-campus student speech . . . reasonably understood as . . . harassment targeted at specific students raise[s] different concerns than those at issue on the facts of this case.”

However, Stein argues the 3rd Circuit’s suggestion that schools respond by relying on the “‘true threat’ doctrine” is inadequate to answer student bullying.

Similar off-campus speech cases are common in North Carolina.

In 2018, dueling social media posts caused an uproar in Cabarrus County, when four students were suspended over off-campus language. There were no threats of violence or bullying involved.

Charlotte attorney Jonathan A. Vogel specializes in education law and represents public school students in cases dealing with free speech, social media, and student discipline. He sees the issue differently from Stein.

“I can tell you firsthand that students are unfairly and illegally punished by schools for expressing themselves outside the school context,” Vogel said in an interview with CJ.

“With the proliferation of social media in society, which plays an outsized role in the lives of adolescents, a message or a picture can circulate around a school’s student population in a matter of minutes, if not seconds,” added Vogel. “A student may share an unpopular political view, or the student may speak a crude word, engage in a stupid antic, or otherwise act with age-appropriate immaturity.

“And then comes the overreaction from certain teachers and school administrators. With irrational fears that every student’s act of immaturity outside the school context risks turning the school into the next school-shooting site, the powers-that-be transfer the student to an alternative school, or they suspend or expel the student from school — all in violation of the student’s First Amendment right to free expression.”

Speaking from his personal experience representing families whose lives were turned upside down by heavy-handed school administrators, Vogel concludes:

“We tend to think that government intrusion is something that happens to others, but not to us. However, it can happen to any of our children because they act like . . . children.”

Perhaps the U.S. Supreme Court is prepared to send Stein a message that the real bullying threat is from overzealous school administrators who think they can control student speech no matter what, when, and where it is.