Another 1-8 victory for Thomas

Unfortunately, while he was right on the merits, the majority went the other way.

In MAHANOY AREA SCHOOL DIST. v. B. L., Justice Thomas wrote a remarkable dissent and flayed his colleagues on the bench for failure to apply past jurisprudence and tradition, regarding how much power schools have to restrict the speech of their students, both in and out of school.

Let’s look at the majority opinion for a summation of what went on to cause this travesty of justice, at least according to B.L., the plaintiff.

B. L. (who, together with her parents, is a respondent in this case) was a student at Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. At the end of her freshman year, B. L. tried out for a position on the school’s varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior varsity team. B. L. did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team

That weekend, B. L. and a friend visited the Cocoa Hut, a local convenience store. There, B. L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B. L. posted the images to her Snapchat “story,” a feature of the application that allows any person in the user’s “friend” group (B. L. had about 250 “friends”) to view the images for a 24 hour period.

The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: “Fuck school fuck softball fuck cheer fuck everything.” App. 20. The second image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The caption also contained an upside-down smiley-face emoji. Id., at 21.

B. L.’s Snapchat “friends” included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B. L.’s posts and shared them with other members of the cheerleading squad. One of the students who received these photos showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches “visibly upset” about B. L.’s posts. Id., at 83–84. Questions about the posts persisted during an Algebra class taught by one of the two coaches. Id., at 83.

After discussing the matter with the school principal, the coaches decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. As a result, the coaches suspended B. L. from the junior varsity cheerleading squad for the upcoming year. B. L.’s subsequent apologies did not move school officials. The school’s athletic director, principal, superintendent, and school board, all affirmed B. L.’s suspension from the team. In response, B. L., together with her parents, filed this lawsuit in Federal District Court.

Seems pretty straightforward, yes?  Well — nope.  The school district lost all the way up the line to the Supreme Court, on First Amendment grounds.

So you say, yay for the student, boo for the patriarchal authoritarian school district?

No.  Or at least, that’s not how Justice Thomas saw it:

JUSTICE THOMAS, dissenting.

B. L., a high school student, sent a profanity-laced mes-sage to hundreds of people, including classmates and team-mates. The message included a picture of B. L. raising her middle finger and captioned “F*** school” and “f*** cheer.”This message was juxtaposed with another, which explained that B. L. was frustrated that she failed to make the varsity cheerleading squad. The cheerleading coach responded by disciplining B. L.

The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus?

Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent.

I’m not going to quote the whole thing, but here’s some of his citations indicating his colleagues did not do due diligence (blogger’s emphasis in bold):

Some courts made statements that, if read in isolation, could suggest that schools had no authority at all to regulate off-campus speech. E.g., Dritt v. Snodgrass, 66 Mo. 286, 297 (1877) (Norton, J., joined by a majority of the court, concurring) (“neither the teacher nor directors have the authority to follow [a student home], and govern his conduct while under the parental eye” because that would “supersede entirely parental authority”). But, these courts made it clear that the rule against regulating off-campus speech applied only when that speech was “nowise connected with the management or successful operation of the school.” King v. Jefferson City School Bd., 71 Mo. 628, 630 (1880) (distinguishing Dritt); accord, Lander, 32 Vt., at 120–121 (similar). In other words, they followed Lander: A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs.

Also, immediately following (again, blogger’s emphasis in bold):

If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it. I would thus apply the rule. Assuming that B. L.’s speech occurred off campus, the purpose and effect of B. L.’s speech was “to degrade the [program and cheerleading staff]” in front of “other pupils,” thus having “a direct and immediate tendency to . . . subvert the [cheerleading coach’s] authority.” Id., at 115, 120. As a result, the coach had authority to discipline B. L.

Our modern doctrine is not to the contrary. “[T]he penalties imposed in this case were unrelated to any political viewpoint” or religious viewpoint. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 685 (1986). And although the majority sugar coats this speech as “criticism,” ante, at 8, it is well settled that schools can punish “vulgar” speech—at least when it occurs on campus, e.g., Fraser, 478 U. S., at 683–684; ante, at 5.

The discipline here—a 1-year suspension from the team—may strike some as disproportionate. Tr. of Oral Arg. 31, 57. But that does not matter for our purposes. State courts have policed school disciplinary decisions for “reasonable[ness].” E.g., Burdick, 31 Iowa, at 565. And disproportionate discipline “can be challenged by parents in the political process.” Morse, 551 U. S., at 420 (THOMAS, J., concurring). But the majority and the parties provide no textual or historical evidence to suggest that federal courts generally can police the proportionality of school disciplinary decisions in the name of the First Amendment.


The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and“leav[es] for future cases” the job of developing this new common-law doctrine. Ante, at 7–8. But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent.

So do I, Justice Thomas.  So do I.  The majority, for all its passionate defense of the First Amendment, misses a number of crucial points and is therefore incorrect in its ruling.

I think Justice Scalia would have agreed with Justice Thomas.