Can School Discipline Student for Profane Snapchat?

Amendment rights. B L and her father, Larry Levy, told CNN that the school had no right to punish her for expressing her anger at not making the varsity squad by cursing at the school in a Snapchat post, along with a picture of her and a friend with their middle fingers raised. In the rules, it did not have anything about what I can and can't stay out of school and out of my uniform. I wasn't proud of

her expression. However, I felt that at that situation that the the school overstepped their boundaries and it was my decision to punish her, at which time I did take the appropriate steps that I felt necessary for the what she had done. The Jeice Department has filed a brief telling the Justice is that the Federal Appeals Court got it wrong when it ruled for the student. Joining me is noted First Amendment expert Eugene fall A, professor at

u c l A Law School. Eugene tell us about the Third Circuit's opinion, So let's just step back a little bit. The Supreme Court in the Tinker case said that students free speech rights don't stop at the schoolhouse gate. But what if the students speaking outside the schoolhouse gate and outside any school programs. That's not to be a zoomed to school or anything like that. She's just speaking by herself on her social media page, or maybe writing a letter to the editor of a newspaper, or talking

at church, or talking at the political rally. Can the student be disciplined, she says to say, Can the students be kicked off the team or expelled from school or suspended from school on the grounds that the effects of her speech are disruptive at the school? And lower courts have split on the subject. The Third Circuit says, no student speech outside school is generally speaking protected from school

retaliation and others. I could say, well, no, if the speech seems likely to be seen at school, or be seen by students and others, then it may have effects that are disruptive at school, and that could be just as bad as disruptive speech at school. And that's the question that the Supreme Court is going to have to be resolving to what extent can off campus speech leads to discipline because of it's on campuses. The Justice Department

says the Third Circuit, this red tinker. Is the Justice Department taking that position because of the categorical rule that the Third Circuit took. Well, so the Justice Department is trying to chart something of a middle course. On one hand, it acknowledges that off campus speech should generally be protected for retaliation by the school, and I think that's I

think that's got to be right. I mean, imagine somebody is involved in some political movement outside school, or some religious campaign or something like that, and it's very offensive to other people at schools. They may view it as blasphems, and they may view it as racists on patriotic or whatever else. You can't have the school have twenty four seven control essentially of a student speech and threatened to expel the student because of what he's saying in the

context of this political movement. It doesn't have to be a big picture political movement. It could just be this person expressing his views on his Instagram account or on a Twitter feed or something like that. So I think the Justice Department acknowledges that indeed, allowing the school to punish this wide range of out of school speech just because it may be disruptive at school would be going

too far. But the Justice Department says there are three situations in which that school authorities do have to have some authority to punish off school speech. Why is that the speech threatens the school community. That's talk of bombing the school or shooting up the school or something like that. Now, of course, if that's a true threat of violence, it could be punished, even if it's not a student saying If that anybody saying it, they could go to jail

for it. But there are some borderline things which are kind of menacing, maybe implicitly threatening, maybe not enough to be criminally punishable, but the school has to be able to maybe expel a students, suspend a student, just to get them out of the place where other people think

they might be trying to mount an attack. A second category that the government points to is speech that intentionally targets specific individuals or groups in the school community, so that might be personal insults of classmates and maybe a teachers or administrators, and that the school needs to be able to restrict that in order to prevent kind of

undue distraction and her feelings at school. But at the same time, such a restriction would leave students free to express whatever views they want in a broader sense political cold views, religious views, moral views in the life. And then the third category is the one that the Justice Department suggests applies here, but it's actually hardest to figure out if it intentionally targets specific school functions or programs regardings matters essential to or inherent in the functions or

programs themselves. As the government and it suggests to hear what was happening is she was intentionally targeting her cheerleading team by essentially expressing contempt for the project. And that is this intentional targeting regarding matters essential to the function, which may have to do with kind of moral and

its creative. So the government is trying to chart this middle course protect students rights to talk broadly about kind of big picture social, moral, political, religious issues, but allow restrictions for various kinds of speech. And I think the third one, the one that they view is applicable here is probably the most troublesome one, just to it's so hard to figure out what kant is intentionally targeting school

functions or programs. What if somebody were to say, you know, I think our history program has become too woke and become too critical race theory, and I think it's awful. Well, is that intentional targeting regarding matters essential to or inherent in the functions or programs that a student can be disciplined in school for that? I don't think that can be right. But again, the boundaries of what the what the government is trying to do especialist to this third

category are hard to figure out. It also seems like that third category covers a lot of comment that the students may make about school programs right exactly, and not just comments by students who are on a team, because in principle, it could apply to somebody else condemning the cheerleading UH program, because it would still be targeting specific school functions or programs regarding matters essential to the programs themselves.

Now you can imagine the a court saying, look um, there needs to be a different rule for removal from an optional program, especially one that is not fundamentally academic, from expulsion or suspension. So you may say, look, cheerleading or even being on a basketball team, um might be seen as almost a kind of job. It's a combination of being a student but also doing a particular task for the school or presenting the school in some sports.

And maybe if you say something that undermines your ability to do that job, you could be in this inspired from that job, removed from the team. But you're still a student in good standing and still graduate. You're not being suspended from academics or anything like that. You're just just being removed from the place that you've been undermining with that place, removed from the particular program that you're undermining with with your speech. So you can imagine a

court saying that. So it's not a matter of whether it is somehow targeted at a school function. It's a matter of whether the whether the school is just removing you from some such team, as opposed to expelling you or suspending you from school at large. So, however, the question presented before the Supreme Court, at least officially, if you look at the petition and the question presented there is whether, um, the Tinker test for restricting disruptive speech

applies to out of school speech. So that so maybe that a court says, look, we agreed to hear this case about out of school speech at large, but especially this question about whether it should be a special rule for athletic teams in similar similar programs. That's something that we can leave for lower courts to reconsider. How have

the other circuits come out on this? Do they have a categorical rule when we or the other They generally say, and I oversimplify here, but they generally say that even off campus speech can lead to discipline, and again not just removal from a team, but suspension from school, even expulsion from school if the speech kind of foreseeably causes disruption on campus. So they say, well, it needs to be speech that can be perhaps seen on campus or

will be paid attention to on campus. But of course, if that's anything right, anything that you say off campus on Twitter or Instagram or whatever else can be read on campus, can be read by classmates with then remember it and talk about it on campus. But even if you write a letter to the editor, it's going to be posted online. It can be read on campus. If you give us speech at our political rally, chances are that it's going to be live streamed or recorded and

put on YouTube and can be seen on campus. Or again, even if it's not right on campus or viewed on campus, other students will see it at home and then come to campus and may be upset by it on campus. So in practice, the other circuits basically say, if something you say, even if it's off campus, causes disruption, causes possible fights on campus, or distraction or really grave upset, then in that case you can be punished for. And

that's what I'm referring to. This seven control over everything that a student may say, including against political speech, religious speech which had moral issues. And the luck how the Supreme Court cut back on students First Amendment rights, Well, it all depends compared to what inscre to win. So in the Tinker case in nine, I think it's generally

thought of the court really broad students right. It used to be that the schools had very broad authority, but then starting with Tinker, the theory was that schools could only restrict speech if it is disruptive or not. And then in a few cases after that the court did. You could say cut back on that, or you could

say kind of established the limits of that principle. So, for example, in the Bessel School District case, the court said, look, vulgar speech, whether it's vulgarities or just kind of sexual innuendo, can be punished once at at school because unlike in Tinker, whereas involved anti war protests, here nobody was going after the viewpoint of the speech. It wasn't political speech. It was just the school teaching kids how to behave including

how to speak in kind of polite way. So that might be seen as cutting back on the Tinker principle or maybe establishing the boundaries. Another case called the Morseley Frederick said that speech non political speech that can be reasonably seen as promoting drugs or advocating in favor of drug use can be restricted again at school functions. That could also be seen as cutting back in Tinker or

again establishing the boundaries of it. The Tinker applies only to political adficacy and not just that the general talk about drugs ben good or something like that. That was sort of the courts theory in some measures there. And then one other case called Hazelwood School District versus kill Meyer involved a speech in a student newspaper and made clear that the principle or the administration could restrict speech

and student newspaper. So I think that has less to do with students and more to do with the fact that a government entity can control its own publications. So for example, um government employer might have an internal newsletter for for its emplees, but the editorial control would be in the hands of the management and not whoever happens to be the writer. So there have been these cases that there might be seen as cutting back on students protection.

But interestingly, I don't think they've cut back as much as lower courts have. Interpreting Tinker in saying that yes, out of school speech can be can be restricted. That is really very substantial restraint on student speech. And the question is whether the court will at least walk at that and say that no, generally speaking with whatever exceptions, but generally speaking out of school speech has to be

protective against the school retaliation. Is that what you think the court will do, well, I'm not sure what it will do. I'm going to be filing an amicus brief quite likely underhaling, some law professors arguing that that's what the court should do, that the court should make clear that at least generally speaking, with some exceptions off campus students speech can't lead to UH school discipline. But what

the court will do I can't really tell. Just generally have free speech issues become more difficult in the light of social media? Well, I'm not sure more difficult. Uh. There's certainly have been some controversies that before would likely

not have been as controversial. So UH, this issue could coolly come up when if she were saying that at a restaurant where teammates would over could overhear, or if she were saying that at some political event where it was captured on a on a hot mic or something like that. But but in practice it would be much less likely that it would that it would be noticed

by the school authorities. So one thing about social media is it takes what otherwise would have been just kind of casual chatter that is largely ignored and quickly forgotten, and makes it much more noticeable and much more likely to lead to UH two disciplinary measures and then from there likely to lead to a lawsuit. Thanks for being on the Bloomberg Law Show, Eugene That's Professor Eugene Polic

of u c l A Law School. The Supreme Court considered two cases exploring the power of administrative agencies this week alone, a topic of renewed interest among the expanded majority of conservative justices. The cases this week involved a federal Patent Appeals Board and the Social Security Administration, the latest in a string of separation of powers challenges questioning how much authority agencies can wield independent from the president.

Joining me is Harold Crant, a professor with the Chicago Kent College of Law. Is it unusual that there have been this string of disputes with constitutional challenges to agency structure? Is that unusual? Or is that happened all the time? The spring pays ushered in a new series of challenges to agency structures because the Court is rethinking questions about presidential control over agencies. So at stake are both the appointment mechanisms for agency's heads and adjudicators, as well as

removal provisions. So, because the Court has inserted uncertainty into this area, individuals who be representing clients before mystery of law, judges and agencies are inserting claims about appointment removal. So in case they lose on the merits, they may be able to still protect their clients by throwing out the decision on the constitutional grounds. Tell us what happened here. It was a challenge to a social security judge. So

here there is a typical social security distability dispute. There are eight hundred thousand hearings before a l J is a year, and after losing before the a LJ and then losing before the agency itself, the individual presented the constitutional claim before the district court for the first time. And so the Supreme Court took several cases to determine

whether or not there is what's called issue exhaustion. You have to exhaust all issues, raise all issues before the the Ministry of Law judge, otherwise that the court will hear it if it's raised for the first time in the court. So, in other words, so the issue that they did not raise until the Supreme Court was the issue of whether or not the social security judge was

properly appointed. That's correct. So at the Supreme Point decided several years ago that at least the mission of law judges within the securities and exchanged Commission were inferior officers and therefore had historically been appointed unconstitutionally um and therefore had to be appointed by the head of the agency itself. So there are many cases that preserved this claim before the Supreme Court made that decision, and therefore they now want to say, look, we were our case was cited

by somebody who was appointed unconstitutionally. Therefore we get a chance to have an hearing before a properly constituted, properly

appointed administrative law judge. So there are cases pending still from that to the case, and now there are a whole school of new cases that are saying, not only do we have a right to be adjud have an adjudication before someone who has been properly pointed, but also someone who is removable um at will by the agency head to ensure sort of a line of accountability to

the president itself. So lots of cases are penning, but the ones that the Supreme Court has looked at so far are ones lingering on from the prior to the Supreme Court decision which said that themistered law judges have to be are luck be considered inferior officers and therefore have to be pointing in conformance with the appointments clause and non historically happened. So why isn't this case moot?

Then if the court has already decided the question about administrative law judges, because they want a new trial or new hearing before the a l J. So, in other words, there are probably hundreds of cases that are still in the system which claim that because they had a hearing before and improperly constituted or improperly appointed administrat of law judge, they need a new hearing before a different administra of

law judge. They are hoping that if they have a new administive of law judge, maybe the result will be different and then favor their client. And is that what Justice Alito was concerned about when he said it would flood the agency with cases? Yeah? I mean the question is how much you know we've already had full resolution of these social security disability cases and we already have eight hundred thousand hearings a year. Do we need to

have more? Particularly when there's no fact that that changes. All it is is the replacement of one a l J for another. So from an efficiency perspective, certainly the claim doesn't have merit. But the claim does have some traction with the Court for a couple of reasons. You know, first of all, including that constitutional claim before the agency

is futile. The agency or the Minister of Law judge is never going to hold that he or she has been appointed unconstitutionally and there is an informal process before it a l J. And in a prior case, the Supreme Court has held that it doesn't want to be as exacting in terms of exhaustion of the administrative remedies when there is an informal adversary process that takes place. So I think that the quote is going to wrestle with this from an efficiency perspective. It's going to want

to say, you lost the claim. You no longer can can raise it if you didn't raise it before the ad Minister of Law judge. But because of that precedent, and because of just the idea that there is such an informal process before the Minister of Law judge, so members of the court are shouldn't going to vote in favor of the claimants here. Some of the justices, I believe Justice Atlanta Kagan said, well, if the agency had wanted to add up to different rule. It could have yea.

So here the the agent. In a prior case, the Supreme Court had held that there was an exception for uh, this exhaustion of issues before the agency itself. Do again to the informality in which the agency acts in these social security disability cases. Particularly you know, if the claim is not closely connected to the merits of the disability case. And so Justice Kagan said, the agency you unnoticed, if you really cared about this, you should have adopted a regulation.

They clearly stated that individuals will forfeit all issues they are not raised before the agency. You had noticed, you had time to do it, and yet you set on your hands. And therefore you shouldn't complain to us now. And there's some logic and Nephew as well, because the quote is said that these idea of exhaustion is really the turns largely on what Congress or what agency requires. So their discretion, meaning the Court's discretion, is only triggered

if it's unclear what the statute or regulation requires. Chief Justice John Roberts seemed to be concerned about giving the claimants ad over what would prevent claimants from bringing up new claims in federal district courts to get a second bye to the Apple. It's a limited do over issue.

But I think what Chief Justice Roberts is saying is, at least with respect to these hundreds of cases that are still alive from before the Supreme Court decision holding that a lj's were improperly appointed, they'll get ado over because of a technicality. And is that an appropriate result

that the Court should endorse. Maybe it's inevitable, but at least the Chief Justice, who was worried that there really no reason equity because of this prior decision, that these claimants we'll get a do over and not any other claimants merely because their case was not final at the time the Supreme Court issued the decision. So there is

some force. And what the Chief Justice said, certainly individuals wouldn't get a do over for any other kind of claim that they would bring in court that they didn't present to the agency or the a l J first, But because of the Supreme Court's earlier decision, they would get a chance at a do over if the court rules in favor of the claimates. Here Justice Brett Kavanaugh, and some say he's foreshadowing the Justice Department's defeat in this case, he asked the Justice Department attorney, if you

were to lose, what's your preferred approach. It may have been tongue in cheek because I think it followed a question about on which ground would you think they're most likely to prevail upon. So it's it's hard to know whether it was forced shadowing or Justice Kavanaugh was being tongue in cheek, but they may have been serious, and it may suggest which way he's leading as well. And oftentimes it's important for an individual to lose on a least bad way for kids or her client. So again,

which way do you think the court is leaning? I think on the grounds of precedent, the court would rule for the claimants. And you know, my guess is Justice Thomas wrote the prior decision um he's still on the court, and so I would predict with not great confidence that he will be able to martial or coalition. That would suggest that the same result should apply when someone fails to raise a claim before a miser of law judge.

Just as he ruled that there was no failure if if a claimant failed to present a case before the agency itself, is the issue settled now or are we going to have more of these cases? So the issue is settled with respect to the appointment of the mystery of law judges. And and I think that there are several hundreds of cases that are still pending based upon

but that have that question alive. However, there is a new series of cases which are almost identical, which have challenged the constitutionality of a l j's because of their removal provisions, and those are now pending in the courts of appeals and distrecourse. And indeed, the UH just ten days ago or so the d C Circuits had a very similar case and refused to address the merits of the removal issue and said that the claim is forfeited its claim because it wasn't raised before the agency itself.

So it was the same identical issue of issue exhaustion, but in the different guys of challenging and removal provisions as opposed to the appointment provision. Which means that the Supreme Court decision here will have impact not only on the hundreds of cases that are still left over challenging the proper appointment of the a l j's, but it's still going to be important or all the cases now

that they're challenging removal provisions as well. So the best thing to do then when you're appearing before an agency is to bring up every possible issue, certainly claim it would be well advised to include all conceivable issues before the agency. In fact, that is the norm in our system. There is a generally there's an exhaustion of available remedies, and not only do you have to go to the agency first, you have to raise all your claims for

the agency. That promotes efficiency, that gives respect to agency, and allows the agency to use his expertise in developing the record in answering the claims. Um. So that is definitely the practice. And the question here is is should we have exceptions because of the informality of these procedures or because of the nature of this constitutional claim which no agency ever would agree with. I would think the Supreme Court is exhausted with these with these agency questions.

So I guess the question would be whether the Supreme Court is exhausted dealing with the exhaustion doctrine. It doesn't seem to be because they've taken these cases and um, they think it's important to clean up and know whether or not the courts are should entertain these claims when the claims have not been presented to the agency first.

But nonetheless, there's still a lot of cases where these claims have been presented to the agency first, and so the court will have to take some of the questions about the removable provision, for instance, on the merits down the road. Why do you think the court keeps taking these kinds of cases? But it's not the most important issue in the world, and there's a lot of disagreement

there is. Certainly they split in the circuits on the on the question, uh, but you know they decided to clean it up even though it's not the most important issue in the world. Where does the patent case earlier this week fit in. It was about the administrative patent judges, but this issue was involved in that case because the challenge to the appointment of the patent judges also arose not before the patent judges themselves, but only in court.

And so it's possible that the court wanted to entertain this case because it's sort of a similar issue was pending in the state patent judges cases, and so the court thought that it might have to address them altogether. Thanks Hal. That's Harold Grant to the Chicago Kent College of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg

dot com slash podcast slash Law. I'm June Grasso. Thanks so much for listening, and please turn into The Bloomberg Law Show every weeknight attend the m Eastern right here on Bloomberg Radio