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Comment by giantg2 | Hacker News Reader

I don't think schools should get involved in off campus speech or activities. However, we are seeing more and more of it. This case isn't even that extreme compared to others. There are people being suspended from actual school for non-threatening photos with guns or even just liking a photo of a gun.

On the other hand, I don't see the problem with cutting a student from an extracurricular for actions that contradict its intended purpose or standards. If you're saying f the school and f cheerleading and the goal of the cheer squad is to promote school spirit and pride... (she wasn't suspended, given detention, or kicked off the softball team) I know I would have been benched or cut if I talked about throwing a game or not trying my hardest and those statements made it back to the coach. It's not like they were monitoring social media for this.

I'll probably get downvoted, but I guess that's the cost of exercising my free speech.

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> I know I would have been benched or cut if I talked about throwing a game or not trying my hardest and those statements

Do you think you'd get a years suspension as a 14 year old if you'd said "fuck this team" to a friend after losing a match? And do you really think that would have been an appropriate response?

You can't compare her venting to threats of throwing games or intentionally under-performing.

Yeah, if I said that, I could see myself being cut for that season (year). I think that could be appropriate depending on the circumstances. To make it similar to this case, it wouldn't just be a friend who heard it, it would be the majority of that school. In which case, I can see that as reasonable.

"You can't compare her venting to threats of throwing games or intentionally under-performing."

You seem to be missing the fact that these are one in the same for her scenario. Dragging down school spirit and pride through her comments is exactly the opposite of the cheer squad's function. Note that she was not kicked off the softball team.

She was 14. It’s unreasonable to expect a 14 yo to always represent an organization. Hell, almost no adults ever do that.

I don't see how being 14 is an excuse. People mature at different rates, but I reasonably believe she knew right from wrong. After all 14 is way past mens rea for much more serious topics.

I am going to impart upon you the worst curse I know: I hope you are held to the standards you hold others to.

I don't see that as a curse. That's what everyone should be doing.

I think the penalty is far too extreme, I think the cheer-squad equivalent of running laps should've been used. It doesn't seem unreasonable to me, though, that the cheer squad can have standards around esprit de corps and have some mechanism to enforce that. The girl didn't just talk to her friend, wholly understandable, but also sent a message to 250 people many of whom, presumably, are fellow students and cheer leaders, some of whom were upset.

I think you're right that it's unreasonable to expect a 14 year old to always represent an organization well, but, that's kind of the point of both being in the organization and punishing poor behavior. The child, who isn't ready to act like we expect an adult to, gets lessons in how we expect adults to act. The cheer leading program is a great way to teach that, provided you don't go too extreme with it, like banning the girl for a year.

Imagine going through school learning that you're allowed to say whatever outside of school and can't be punished for it. Then you get a job and talk shit about it on social media the same way you've been taught is perfectly acceptable, and... You get fired. Conversely, imagine being a student in a student org and getting scolded and minor and increasing punishments for acting inappropriately and you come to understand what's expected of you. I think the latter student is better equipped for the real world.

If you angrily told a personal friend "fuck this team" after a losing game, does that get you suspended? No it doesn't..

A 24 hour self deleting vent to a personal circle of friends should be treated similarly.

As someone else in this HN thread eloquently said:

> It's not just that it was expressed off campus. It was expressed privately. Her speech on its own never reached the school. It was deliberately recorded and rebroadcast. The disruptive speech was the replaying of what she said, not her saying it. There is a huge difference.

Was she suspended? I saw that she was only cut from the cheer squad. I could certainly see getting cut from the tram for the year if I said similar things and the coach heard about it. It wouldn't matter how it got to the coach.

To be clear, isn't the suspension from participating in those activities (cheer) not from school itself? The former seems completely appropriate to me. The latter not at all.

It seems she could still be in cheer, just not on the higher status squad.

I read that she was cut from the cheer squad for 1 year. No actual school suspension. It seems she was also still allowed on the softball team.

I'd be more inclined to agree but the Snap was hardly public - it disappeared long before school resumed - and her parents were heavily involved, appealing this decision to all levels of school admin before launching a suit. A teenager saying "fuck this $whatever" outside of school hours is hardly disruptive enough to justify this level of punishment. And that level of punishment over something so trivial makes it more difficult for other students to exercise their right to speech without government interference.

It sounds like it was pretty disruptive to the cheer squad with the bullying and interference with the team dynamic. They didn't suspend her nor cut her from the softball team. The only "discipline" she recieved was being cut from the cheer squad that year due to the disruption she was causing there. She became an active participant in speech that is contrary to the purpose of the cheer squad. I don't know of any sport that will let you be on the team if you are sabotaging the goals of the team.

What other speech would be interfered with? It's not like she was suspended, given detention, etc like we see in other cases of off-campus speech issues. It seems this case is fundamentally different from those other cases since formal discipline was never taken and only involved an extracurricular activity. So I don't really see this impacting other areas of speech and I would hope the court acknowledges these differences and greatly restricts their powers. But I think this case would meet whatever guidelines they come up with.

Two judges have held that:

- BL did not waive any constitutional rights when she signed the cheer contract.

- BL’s Snap was off campus speech.

- BL’s Snap did not cause any actual or foreseeable disruption of school activities.

Here’s the appeal court’s ruling:

https://www2.ca3.uscourts.gov/opinarch/191842p.pdf

"BL did not waive any constitutional rights when she signed the cheer contract."

This is very interesting. I guess they mean any off campus rights. Many rights are clearly restricted on campus, including school events at any location. I also see the bring up that the prohibited conduct in the contract is not strictly defined. Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity).

Thanks for the link. It's interesting that the judges contend that they should only be looking at the first snap even though the background contains quoted testimony that both captions were part of the concern. Then they go on to say that the first caption is not information, which might be true. But the second one does have negative information about the selection decision. Although it's also interesting that opinions are not considered information, when by any other test they would be. I just find it odd that they would overlook the testimony they quoted in the background previously. And a similar issue with when they talk about the act occurring between seasons, yet tryouts were supposedly just held for that season.

It's also interesting that they didn't examine it from a performance aspect. They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function. Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution. It makes one wonder if the government should be involved in education at all if it requires constant exceptions to constitutional rights, that essentially the elements of running a school are in contention with the laws of the government and the rights of the students. I guess we just have to wait for the SCOTUS decision to remedy the split.

> This is very interesting. I guess they mean any off campus rights

No, they mean any Constitutional rights.

> Many rights are clearly restricted on campus, including school events at any location.

To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow.

> Yet we have plenty of laws which are also not strictly defined and they are upheld (so much for lenity).

Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced.

> They do mention a test of whether the person can be punished off campus for the speech. They only investigate this from the standpoint of the team being "the government". They do not look into whether private teams punish students for similar issues, and thus if the school team requires the same customary practices to effectively function.

That’s because the government has no inherent right to do what private entities may do that trumps Constitutional limits on government. If cheerleading teams need things that exceed the legitimate power of government to function (which I doubt, but whatever), then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers.

> Essentially the same reasoning that schools are allowed to restrict other rights in the classroom - that they need the customary authority that comes with the implementation of activity (school, team, etc) because being restricted to only the role of government would make them an ineffective institution.

That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts.

Wow, brilliant reply. I owe you for this one!

"No, they mean any Constitutional rights"

So knives and guns aren't banned? Drug searches without consent are ok?

"To the extent that that is true, that’s not a waiver by the student. But while it allows considerable regulation, the limitation on free speech on schools is quite narrow."

It seems quite broad based on the case laws they cite. It can restrict vulgarity, imaginary stories containing violence, prayer, and basically any topic they feel would cause a disturbance, which is a lot.

"Lenity is not absence of strict definition of what is prohibited, but government’s power to not fully prosecutr what is prohibited. Strict definition is about the boundary of what may be enforced."

If a law is defined using vague terms, then any ambiguity is supposed to benefit the defendant. The reasoning is that you can't expect people to abide by a law that is unknowable because it lacks a clear definition.

"then the solution is for the government not to run cheerleading teams, not for thr government to assume unconstitutional powers."

"That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts."

Exactly my point about education in the previous comment. These exceptions to rights that are necessary for the school to function, by your own argument, make it so that the government should not be running schools at all.

You reference these narrow restrictions from previous rulings. On what basis where they created? Not on some Constitutional text, but on the court deciding those rights can be restricted. So too could they rule in this case and cement a restriction that was not challenged before.

"That is not the basis for the (fairly narrow, in the case of free speech) power of government to regulate conduct in schools beyond what it can do in other contexts."

Then what is? I see nothing in the Constitution allowing for those restrictions on this right. They were manufactured by the court through common law customs/beliefs and cemented in case law.

This is way beyond my knowledge but I found an interesting article about the constitutionality of a US law regulating firearms in schools. It’s not entirely relevant to this subject but it helped me understand a bit more of the how/why of these sorts of decisions.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article...

Sports or Extra Curricular Activities come with additional responsibilities than simply attending school. When you participate in these activities you become a representative of the school. In a simple example this is why most sports teams ( used to ) wear ties and or slacks on game day.

The community and the school views you as an extension of the school's pride and standards. You sign a contract to this affect when you join the activity.

Cheerleading has a unique set of requirements beyond other programs. In some schools the student body votes for the cheer squad, in others the ASB council does. Sometimes they are members of the ASB council. In some schools that are actually considered a sport ( inside joke for other who have been involved in cheer, and yes it is one of if not the toughest sport ).

This makes the contract a Cheerleader signs a bit different than other activities. The contracts do become a bit vague. However, sending out an instagram as the one in this instance would certainly fail the criteria for most cheer contracts.

Activities outside of school typically prohibited by most activity contracts include drinking, attending parties where illegal activities are occurring, being arrested, disparaging your team or opponent, bullying any member of the student body, etc.

My two cents, the severity of the punishment is the problem. I believe the penalty outweighed the violation. A single game suspension and an apology would have been a better teachable response. Instead they created a crisis where one did not exist.

I can see either as reasonable (the one game suspension or the 1 year). I thought there were other issues she was causing too. Didn't it say she was causing issues in the team dynamic by essentially bullying another teammate, stating (or was it implying) the coach already talked to her about it? It seemed like this was not a first strike.

Yes you are correct.

Perhaps the accumulation was the basis for the year suspension. In other sports you would be benched for poor behavior. Sports like cheer and dance are hard to bench people due to choreography dependencies.

Certainly agreed, for the speech that has nothing to do with any school activities. Your comparison about talking about throwing a game and the coach learning about it is apt; that sort of speech is essentially the same as your boss at work overhearing that you want to sabotage your work. I feel like the coach, or boss, taking action because they don't feel their player or employee has the best interests of the team or company at heart is well-warranted.

However, for speech that does not relate to any school activities (for example, taking your point of a student exercising their Second Amendment right) should not result in action against the student.

> I don't see the problem with cutting a student from an extracurricular for actions that contradict its intended purpose or standards.

"Sometimes I doubt your commitment to Sparkle Motion."

Political correctness isn't about taste or decency, it's about control through pseudo-offense, imaginary "victims," and "microaggressions." This is manipulative browbeating by implicitly threatening people's standing in society by telling them what to think, what words are "correct" now, and what topics they can't talk about anymore, even as jokes. Oh and now, let's retroactively rehash the past, tell people how horrible they were in the present, and punish them too. Keep looking for people to punish, excoriate, banish, and crucify until there's no one left. After all, no crime is too small to not earn the instant death penalty.

George Carlin (RIP), Bill Maher, Jerry Seinfeld... sadly, I think they lost the war because there weren't and aren't enough comedians with enormous lower-middle orbs (female orbs run a little higher) to stand up or manspread against the tides of Karens, booers (that's not "boogers," although that would work too), shouters, and the rest of the heckler safety-pin brigade mob.

Whether you see an issue with it is orthogonal to the legality/constitutionality of the matter.

I don't see an issue with it legally/constitutionally. Case law has been pretty clear that it's not an unrestricted right, this punishment seems logical and thus likely acceptable under common law, and I haven't seen any real support for a theory in which this is not acceptable (besides 1A MFer).

While students do not retain all their First Amendment rights, case law is clear that they retain them to some extent, and in particular Tinker makes clear to what extent schools may restrict those rights. Further, I believe the school will not be able to successfully argue that her speech posed a substantial disruption. As it was neither bullying nor threatening and shared privately, the extent to which it may have constituted a disruption was caused by the student who shared it rather than her; if it did pose a disruption, it wouldn't have done so had it not been shared by (I presume) one of her classmates.

Anyway, another reason why I would be very surprised if SCOTUS rules against her is that criticism of government institutions is precisely what the First Amendment is designed for.

I thought her speech pertaining to the other girl constituted bullying.

I doubt the privacy laws really hold snapchat as private communication. PA law is very restrictive about recording. If someone recorded her conversation so that it could be played beyond the 24hr period in snapchat, it's possible they could be prosecuted for a felony under the wiretap laws if snaps are actually considered private.

Tinker doesn't really provide clear criteria. The disruption would have to be proven, but the articles don't give us all the details around the issues that were being caused on the team. It's possible she reiterated or confirmed her position at school or the activity, further causing the disruption even if some other person was the first to bring it up (ie it's likely not all of her speech occured off campus). Tinker also doesn't define censoring. It's mostly about not suspending or suppressing student speech on campus in a formal classroom setting. The nature of an extracurricular can carry additional responsibilities and expectations (things like illegal activities, bullying, not following team standards, even performance issues - which you could say this meets) . In this case the school did not try to censor the off campus speech, it merely took action to remove a team member that had a performance issue by violating team policy. There was no formal discipline and she was even allowed to continue with softball.

> Love how me and [another student, whom Levy identified by name] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?

I don't see how that can constitute bullying; the student mentioned here is her friend. It's critical of some freshman getting on the varsity team, but it doesn't appear here that she even mentioned said freshman.

Privacy laws are not really relevant; I was speaking of privacy in a broader sense, in the sense that what she said was meant for just her immediate circle of friends, and not wider dissemination.

If she had been disruptive in person at the school, that's a completely different story, but I would expect we would have heard of that if that had been the case. Judging it as a case of purely off-campus speech, there's no way this qualifies as disruptive.

Extracurriculars can carry additional responsibilities, but if they are provided by a government institution, then they have to follow the Constitution. As for the definition of censorship, punishing a student for their speech is censorship. 'Team policy' is not an excuse if it is unconstitutional. If speech restrictions can apply off-campus and outside of school events, a 'team policy' could just as well include things like never making political statements, or never making left/right political statements, and so on.

If you're the only freshman making the team, then you don't need to be named to be identified. I did just see that text and agree that the text was not bullying.

You realize she sent this snap to 250 people? Do you have any privacy expectations when sharing stuff with that many people on a social media platform? I wouldn't expect anything to stay private if you put it on thr internet and tell 250 kids. This is not just a circle of friends. I don't see how privacy/recording laws would just stop applying if it was considered private. Which is sort of my point. If there was a valid invasion of privacy, I would expect legal action to be taken. It seems that did not happen.

"there's no way this qualifies as disruptive."

Unless it's disrupting team dynamic. It does goes directly against the goals of the team - promoting school pride and spirit.

"then they have to follow the Constitution"

That's not really true as that's not happening now. There are tons of Constitutional rights that are essentially ignored by schools including 1st, 2nd, and 4th. This case is basically up for seeing if those exceptions apply here or if a new exception is to be created. I think that this team policy will be found to acceptable because it's really a performance issue, not a speech issue as she is going against the goals of the team.

> If you're the only freshman making the team, then you don't need to be named to be identified.

She didn't really even mention a freshman making the team, although it was vaguely alluded to.

> You realize she sent this snap to 250 people? Do you have any privacy expectations when sharing stuff with that many people on a social media platform? I wouldn't expect anything to stay private if you put it on thr internet and tell 250 kids. This is not just a circle of friends. I don't see how privacy/recording laws would just stop applying if it was considered private. Which is sort of my point. If there was a valid invasion of privacy, I would expect legal action to be taken. It seems that did not happen.

The point was that it wasn't intended for a larger audience outside of her circle of friends.

> Unless it's disrupting team dynamic. It does goes directly against the goals of the team - promoting school pride and spirit.

Could complaining about the school off-campus and outside of school events disrupt student morale, justifying suspending a student? Anyway, even the judge who dissented in the appeal agreed that it wasn't disruptive:

> Judge Thomas L. Ambro disagreed with his colleagues regarding off-campus speech and said it would have been enough for his colleagues to simply have ruled in Levy’s favor because her speech was not substantially disruptive.

> That's not really true as that's not happening now.

It did happen. She was already restored by a judge to the JV team years ago.

> There are tons of Constitutional rights that are essentially ignored by schools including 1st, 2nd, and 4th.

There are tons of Constitutional rights that are ignored by government at every level.

> I don't think schools should get involved in off campus speech or activities. However, we are seeing more and more of it. This case isn't even that extreme compared to others. There are people being suspended from actual school for non-threatening photos with guns or even just liking a photo of a gun.

It's a symptom of a bigger problem in that U.S.A. schools and companies can terminate for arbitrary reasons.

Such would never hold where I live and most other places where an expulsion from school requires approval from an independent government organization or a court which of course will give the defending party ample opportunity to tell it's own version of events and defend itself.

The U.S.A. seems culturally built upon a mentality that one should fear government, but never citizens, and consequently has developed an idea of “Free speech is only from the government.” whereas in most developed nations, freedom of opinion is a more active right that the government also attempts to safeguard from private citizens and schools.

There is a whitelist of reasons in most developed nations wherefore one may be terminated, not a blacklist wherefore one may not, and “saying controversial things outside of work, not in any way associating oneself with one's empoyer” is usually not one of them.

> If you're saying f the school and f cheerleading and the goal of the cheer squad is to promote school spirit and pride... (she wasn't suspended, given detention, or kicked off the softball team) I know I would have been benched or cut if I talked about throwing a game or not trying my hardest and those statements made it back to the coach. It's not like they were monitoring social media for this.

Luckily I can't be let go for this either.

>It's a symptom of a bigger problem in that U.S.A. schools and companies can terminate for arbitrary reasons.

Is this specific case really arbitrary though? Did you read the contract/terms & conditions that this individual was under? Was this termination random or on personal whim? Because it sounds like it's the result of an individual's actions in violation of an agreement between that individual and another entity.

>The U.S.A. seems culturally built upon a mentality that one should fear government, but never citizens, and consequently has developed an idea of “Free speech is only from the government.” whereas in most developed nations, freedom of opinion is a more active right that the government also attempts to safeguard from private citizens and schools.

Yes, that mentality is literally part of American culture. In the U.S., governments, unlike citizens, are granted a monopoly on the use of force so a natural distrust is not only appropriate but warranted. The government is under no obligation to defend your rights if you literally sign them away (although there are some rights which cannot be waived). You can say whatever you want, but there may be consequences depending on what you say and where you say it.

>> If you're saying f the school and f cheerleading and the goal of the cheer squad is to promote school spirit and pride... (she wasn't suspended, given detention, or kicked off the softball team) I know I would have been benched or cut if I talked about throwing a game or not trying my hardest and those statements made it back to the coach. It's not like they were monitoring social media for this. > Luckily I can't be let go for this either.

People, including children, must learn there are consequences for what they say, particularly in a public forum (and this was effectively so). The only recourse in cases such as this is whether the response was appropriate e.g., within terms of a contract. I personally do not believe that what was said and who it was said to would warrant expulsion, but that's just an opinion, not a contract.

> Is this specific case really arbitrary though? Did you read the contract/terms & conditions that this individual was under? Was this termination random or on personal whim? Because it sounds like it's the result of an individual's actions in violation of an agreement between that individual and another entity.

Such contracts would not be enforceable of course.

Employer protections are not contractually waivable, they would be quite useless if they were.

> Yes, that mentality is literally part of American culture. In the U.S., governments, unlike citizens, are granted a monopoly on the use of force so a natural distrust is not only appropriate but warranted. The government is under no obligation to defend your rights if you literally sign them away (although there are some rights which cannot be waived). You can say whatever you want, but there may be consequences depending on what you say and where you say it.

Yet in most countries where the culture is not so, one does not for instance have a right to own firearms and self-defence in general is more curbed, so I do not believe that.

> People, including children, must learn there are consequences for what they say, particularly in a public forum (and this was effectively so). The only recourse in cases such as this is whether the response was appropriate e.g., within terms of a contract. I personally do not believe that what was said and who it was said to would warrant expulsion, but that's just an opinion, not a contract.

This is a circular reasoning; such consequences exist in the U.S.A. because the country allows employees to be terminated for it. — there are no such consequences in most developed nations.

> There are people being suspended from actual school for non-threatening photos with guns or even just liking a photo of a gun.

You may get downvoted for making a preposterous claim with no supporting evidence.

https://nypost.com/2019/04/10/students-suspended-over-snapch...

Just one of several incidents, I chose the first one that popped up on DDG.

There have been several examples. Here's one from recently:

https://www.msn.com/en-us/news/politics/family-of-boy-suspen...

> Nine-year-old Ka Mauri Harrison was taking a test virtually when he saw his teacher rush to get his attention after she spotted the BB gun in his room, a New Orleans NBC affiliate WDSU reported.

> Ka Mauri's parents chose to start the school year off remotely, due to the coronavirus pandemic.

> The incident resulted in the fourth grader being expelled from his school. However, his punishment was reduced to a suspension this week.

> Harrison's family called the punishment a mistake, adding that it threatens their son's academic future.

> "This is an injustice. It's a systemic failure," Chelsea Cusimano, the family's attorney, told The Washington Post on Friday. "They're applying on-campus rules to these children, even though they're learning virtually in their own homes."

> The boy's father, Nyron Harrison said, "They are treating it as if he brought a weapon to school," according to The New Orleans Advocate. "They told me he would be facing expulsion."

> Jefferson Parish Schools, a Louisiana school district that includes Ka Mauri's school Woodmere Elementary, told The Hill that it does not comment on individual student records.

> "Regarding discipline, it is our policy that teachers and administrators may employ reasonable disciplinary and corrective measures to maintain order," the district added.

Here's one suspended for liking picture of gun:

https://www.dailymail.co.uk/news/article-4488386/Boy-suspend...

Another one:

https://nypost.com/2019/04/10/students-suspended-over-snapch...

In a country where arms are part of the constitutional rights, students liking picture on social media or having it in the background during a virtual zoom conference is natural. Getting suspended over it is absurd.

Here's another related one. Virginia Tech Women's soccer player Kiersten Hening alleges she got benched for not taking the knee before a soccer match. Now she is suing. Here is a lawyer's breakdown of the lawsuit:

https://youtu.be/kMDN-9HoTbw

https://youtu.be/iPZbygw5PN4

Thanks for the links. They're really eye-opening.

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