A Cheerleader’s Supreme Court Case

After reflecting on The Dispatch’s interview with former President George W. Bush this week, David and Sarah ...

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After reflecting on The Dispatch’s interview with former President George W. Bush this week, David and Sarah discuss Justice Stephen Breyer’s controversial pronunciation of the word “amicus,” Justice Brett Kavanaugh’s Second Amendment jurisprudence, and Justice Neil Gorsuch’s majority opinion in Niz-Chavez v. Garland, Attorney General. Stay tuned to hear our hosts chat about Supreme Court oral arguments for a First Amendment lawsuit involving a high school cheerleader.

Show Notes:

–Out of Many, One: Portraits of America’s Immigrants  by George W. Bush

–George W. Bush Paints E Pluribus Unum on the Dispatch Podcast

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    So how many top-of-the-key jumpers DID Mr. French hit during his tryout?

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  2. Mike Hobolth

    A perspective on the cheerleader case by a prominent voice on legal issues related to school/social media, Justin Patchin:
    https://www.linkedin.com/pulse/mahanoy-area-school-district-v-bl-when-can-discipline-justin-patchin/?trackingId=DxKPt%2B2BWVCZvyxc0Wo%2B5A%3D%3D

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    Ben Connelly

    Since the Confederate flag was noted a couple times as something schools apparently shouldn’t tolerate, I wanted to shed some light on that. I grew up in the south. Not the Deep South but solidly part of the former Confederacy. Every day at my high school we probably had a good 50 students sporting Confederate Flag memorabilia (t shirts, hats, etc.). I’d guess a plurality if not outright majority of students owned something with the Stars and Bars on it. Personally I hate that flag and it’s why I’m glad I didn’t stay in the area. But I doubt the majority of kids who sported it were racist (some of them definitely were). And I think it would cause a massive uproar if the school tried to ban it. Also (not to date myself), that was less than 10 years ago, so I doubt much has changed.

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  4. DAG

    The description of the arguments of the ACLU is revealing. While attempting to retain its 1st amendment history, the ACLU arguments Sarah Isgur presented might demonstrate its loyalty to the speech restraints supported by much of its current base. Thus the ACLU wants it both ways.

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    Ethan Cordray

    Way simpler way to decide the cheerleader case, no treatise necessary: schools have absolutely no authority to police citizens (which is who their students are) outside of the actual, literal times and places of their operation. Bright line, end of argument. Walk out the door, the school has zero authority over you. You are a citizen like any other, subject to the exact same laws and with the exact same rights as anybody else. Your parents have legal rights over you, nobody else does.

    If this would inhibit the "proper functioning" of public education, too bad. Maybe that's a sign that the American model of mass institutionalized compulsory education is a bad idea, and is fundamentally at odds with our constitutional order.

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  6. Avatar photo
    Jason Gibson

    I've done some extra podcast research. I think the school should prevail. The girl signed an agreement not to engage in disparaging speech. she was suspended from the cheerleading squad. This was appropriate as she violated her code of conduct that she agreed to. Now if she had been suspended FROM SCHOOL this would be a violation of speech in my view. Due to it being "off campus".

    I would like to hear David and Sarah talk a bit about this issue as there are many such agreements required by companies in the "adult world". For example i've seen counseling agencies (not mine) that require their employees to sign an agreement not to leave employment at that agency to go to a competing agency (in say a two county area).

    These things happen in the work place don't they? Why should this girl be taught that she can engage in such speech when she gets into the adult world?

    I think a school has a right to have a code of conduct FOR A SCHOOL SPONSORED ACTIVITY. This is different than if they were punishing her just because she was a student in the school. Cheerleading is a voluntary activity AND she was informed of the ethical expectations and agreed to them.

    What am I missing?

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    1. Avatar photo
      Ethan Cordray

      Are minors competent to sign code of conduct agreements? Why would that be different from a contract or a legal waiver, requiring a parental signature?

      Also, public schools are not workplaces with at-will termination or employment contracts. They are arms of the government, where attendance is compulsory, not voluntary. Thus they are constrained from violating citizens' rights in the same manner that all government agencies are. Even voluntary school-sponsored activities cannot have codes of conduct that restrict their students' fundamental civil liberties. Would a "voluntary" code of conduct that prohibited, for example, engaging in religious worship be enforceable? I think the answer is no. Same goes for 1st Amendment-protected speech.

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        Jason Gibson

        Thanks for your response. You raise good concerns but there is a piece that you are missing. The only thing in question as far as I can tell is that it was off school property. If it was ON school property or on school time they could have suspended her FROM SCHOOL not just cheer

        Religious worship is different in that it is not necessarily disruptive of school activities (though if shown that in an instance that it is it could be addressed)

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        1. Avatar photo
          Ethan Cordray

          Actually, it turns out that my response isn't actually relevant to this case. As they covered in the podcast, the lower court ruling held that her speech did not, in fact, violate the specific code of conduct that she had agreed to, and that ruling was not appealed. So in this case, we're actually *not* dealing with a scenario in which a student has violated a code of conduct. The courts have determined that she did not. That's why it's a test of whether speech can be policed regardless of the existence of codes of conduct.

          I would still hold that schools cannot enforce "voluntary" codes of conduct that restrict their students' fundamental constitutional rights, regardless of any putative "disruption of school activities." If they can, that's an easy pathway to tyranny and oppression of disfavored religious and political minorities. A school could easily use that rationale to prevent practicing Jews or Muslims for participating in all extracurricular activities, for example.

          It's much easier to simply draw the bright line: the school is the State, so it is restricted in its power over citizens in exactly the same manner that the State is.

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          1. Avatar photo
            Jason Gibson

            But there is a line. Can a school police behavior? Suppose someone believes that virtue is tyranny because it is a social construct. They then ensure that they engage in as much rule breaking as possible

            They try to interlace as much profanity as possible in everything they say. Is this the first amendment?

            No. We need to get away from the idea that the first amendment means that an individual can be free of all societal standards.

            The Bill of rights was created because these rights are necessary to ensure human flourishing. However human flourishing was something that the founders would have been happy to define.

            If she had been suspended or expelled from school I think we would have a first amendment violation. She was simply removed from cheer

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  7. Brett C

    I personally think students should be allowed to wave their first amendment for enrollment (not just curriculars) and for universities to reach beyond campus. Perhaps not for public universities, but definitely for private universities.

    I'm thinking of universities like BYU that requires mormon attendees to be in good standing with the mormon church in order to maintain enrollment, but of course a personal blog that routinely criticizes the mormon church can lead to excommunication, which would lead to expulsion from the school. But all students sign on to these rules when enrolling.

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      Ethan Cordray

      Private institutions can do anything they please, subject to the normal laws of contracts. There's no difference between them and any business

      Public institutions are arms of the State, and must be restricted in the same manner as the State is restricted. This is particularly important for involuntary, compulsory-attendance public schools.

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      Aylene Wright

      I think there can certainly be a distinction between public and private institutions here.

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  8. Brett C

    I like that Breyer insists on the Anglicized Latin pronunciation, but maybe he should read W's new book. We don't need to import Anglo-Saxon culture. 😉

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  9. app

    It doesn’t seem that complicated to resolve the cheerleader case. Hold Tinker has limited applicability off-campus. But a coach absolutely can have a code of conduct that applies to off campus speech/conduct. I don’t see how that violates the constitution. Kind of analogous to ethical rules restricting lawyers’ speech rights.

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  10. CRS

    David has been talking about Heller and expecting broader gun rights from the Court. He several times has mentioned the standard of "common use."

    As Breyer noted at the time, this is pretty hopelessly circular logic. Machine guns can be heavily regulated, but only b/c they have already been heavily regulated or banned? If they were more common, they couldn't be banned? I have no doubt that many people today would have fully automatic ARs today if they were legal. That's a good reason to ban fully automatic weapons, not a bad one. And what about bump stocks? If say 50 million of those had been sold quickly after they were developed, presumably setting the standard for common use, they could not have been banned? I don't get it.

    Furthermore, "common use" at what point in time? We take for granted today that AR/AK type weapons are in common use, with large mag capacities, but I don't recall that being the case 30 or 40 years ago. They used to be exotic. As they became more common, there were attempts to ban them, to keep them from becoming common. Moreover, the fact that they are in common use can make the case for banning them more compelling, not less...the more widespread, the greater the danger, if you agree that there is danger (and many don't, but a reasonable legislature could conclude this.)

    Breyer was also right that there are no untouchable first amendment rights (so why the 2nd?). We ban some speech even if (especially because?) it is common. False advertising. Fraud. Child pornography. There are always balancing interest tests in speech.

    That decision and others that are related, which are taken for granted today, seems really to have been what conservatives have opposed (or used to), which is the court making a political decision. The fact that a weapon is in common use itself depends on past legislation, so it's hopelessly circular. If the legislature can ban a weapon that's not in common use, where in the constitution does it say that they can't if it is commonly used? That decision is a legislative matter.

    So I think the argument that ARs are in common use so they shouldn't be banned is maybe the weakest argument one could make, except for the fact that court set up a rather non-sensical standard in the process of radically overturning long-standing precedent.

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    1. Mathew A

      full on machine gun use for non belt fed machine guns is actually not very common. For example, when I was in the army the M16 (the military equivalent of the AR15) doesn't have a full auto mode, instead it has a burst mode (3 rounds). Basically full auto needs a LOT of ammo, and preferably mounted in some fashion (say on a vehicle). Otherwise it's too inaccurate.

      Moreover, actual machine gun ownership even when legal wasn't really that common. That's why the National firearm act of 1934 that made owning a machine gun problematic wasn't a big thing. It didn't ban a bunch of guns that people already had.

      I'm sure if it was legal there would be some people that got full auto just because. But the majority of gun owners wouldn't just because it's not very practical. And most gun owners are practical have zero desire to go on a shooting rampage.

      All that being said, I agree in part with US v Miller 1938. If the 2nd amendment covers anything, it would be small arms of the type used by the military. That would most definitely be things like an AR15, but IMHO an M16. Whether people should be able to buy a M2 50 cal machine gun, I'm probably ok with a more expensive background check for that, but disagree with the outright 1986 ban

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