BL Levy v Mahanoy SD — Blog — The Green B Letter

Back on June 30, The Third Circuit for the US Court of Appeals in Pennsylvania gave the judicial finger to school safety and student discipline by ruling in favor of a disgruntled 9th grade student who dropped a payload of F-bombs on her school using social media and received by 250 friends. The Court decided that she was on her own time, not participating in a school event, and using personal equipment. Therefore, she was free to open the hatch and let go the ordnance. The defendant, Mahanoy School District, appealed to the Supreme Court. The case piqued SCOTUS’ interest--oral arguments were heard late April. TGBL will weigh in further when a decision is rendered, which is coming shortly. For now, we’ll briefly look at a central premise of the 3rd Circuit Court’s opinion.

Judge Krause, the majority-opinion writer, created an argument in a vacuum, a reality void, a piece perfect for second year law school, written in an ivory tower rivaling the height of a Dubai skyscraper. Krause said that the student’s behavior excluded threats and resulted in no disruption. No harm, no foul (except the bad language, which the kiddies use anyway, dontchoo know.) She quoted one of the education lawyer’s (you won’t believe how many there are) most lucrative mantras: the Justice Fortas’ oft-cited sentence from his opinion in the 1969 Supreme Court landmark decision on student speech, Tinker v des Moines, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” What they do shed is the right to life and limb, skinned each day by the courts, leaving at the schoolhouse gate authority’s protective layer for their well-being in flagellated pieces. Flay and splay, a new judicial concept in school safety. The courts’ decades long assault on order and discipline may add Levy v. Mahanoy to its legacy of cases diminishing a school’s ability to maintain order and security. Lawyers at happy hour will raise a glass to SCOTUS if they hold for Levy, toasting a meddling court for driving new product to help an overcrowded field. Welcome to the world of education law.

TGBL agrees no explicit, direct threat was made. However, interpretation of communication often requires inference. Threats, conspiracies, illegal plans, adolescent belligerence come in many cryptic forms. Apparently, only overt, literal statements are the guiding principals for the bright lights of the Quaker State’s 3rd Circuit.

In “Godfather III” at Michael Corleone’s Vatican award reception, a guest reached out to congratulate him. As he did so, he told Corleone someone in his district would be good for the courts. Michael said, “We could always use a good judge.” The implication was clear: he has the power to make it happen by what means necessary.

Michael Cohen, Trump’s consiglieri until he wasn’t, described how the former president’s langue d’affaires was communicating in code. Dubious or nefarious, unethical or potentially illegal, the Big Boss’ instructions were encrypted in vague phrases and conveyed in orders cloudier than a London fog. You knew what he wanted done without telling you what he wanted done. As Boston’s legendary 19th Century political boss Martin Lomasney said, “Never write if you can speak; never speak if you can nod; never nod if you can wink”. Add former NYS Gov Eliot Spitzer’s corollary, “and never write an e-mail.” People find ways to conceal true intentions and personal responsibility, ready to whip out the shield of “that’s not what I said, not what I meant, I was only kidding”. The Trojan horse lives today in linguistic and electronic iterations on a monitor, the mundane concealing the evil.

Kids have their own way of protecting themselves against accusations, no matter how delusional or wacky. A student will provoke another student by attacking the target with a shove, trip, whatever, and then beating him, claiming self-defense as the setup victim tried to recover. It’s a spinoff of the child who murders his parents and then asks for mercy because he is an orphan. Another trick is invoking the 1st Amendment to deny uttering the F-word: “I didn’t tell Mr. Smith to go fuck himself, I said go fuuuuhhh yourself”. See, no curse. Granted, the 3rd Circuit does understand in-school students shouldn’t curse out teachers, the administration, or school while participating or commenting on some aspect of a campus’ multi-faceted schedule.

So, fire away young stalwarts of the First Amendment, the courts have given you the playbook for being bad, some shady Roy Cohn legal advice on how to be illegal legally: Just don’t be direct in what you say, do it on a Saturday in your room, don’t nod if you can wink. Tell them you invoke the Krause Defense: ‘I’m frustrated’.

As we await the imminent Court’s ruling, teachers across the country can be heard repeating the words of Michael Corleone, “We can always use a good judge.”