Supreme Court — Blog — The Green B Letter

Mos Eisley—You’ll never find a more wretched hive of scum and villainy. — Obi-Wan Kenobi

On a beautiful late June evening, the educational hives across the country were a buzzin’ late into the night. The growing number of education lawyers and their student clients--the misbehaved, oppositonals, the “dare ya” kids, the thieves, the bullies, the assaulters, the sociopaths and other EDPs who comprise the threat to a school’s community, raised their bottles and toasted the Supreme Court of the United States deep into the night and the wee hours of the morning. In particular, the man of the hour, 83-year-old Justice Stephen Breyer, writer of the majority opinion, was toasted more than marshmallows at summer camp.

Prompting the adulation was the 8-1 decision in favor of Brandi Levy over the Mahanoy School District. The somewhat ambiguous decision said that the schools cannot discipline students for off campus speech or expression. Except when they can. SCOTUS, and this was an objection raised by Thomas’ dissent, did not elaborate on standards for intervention. They were very good at delineating the standard for non-intervention, but left it to the schools to decide on action for off campus behavior, using Breyer’s three point guide, a piece of work on its own. TGBL looks at his three-armed monster below.

IN LOCO PARENTIS—I hate to tell the good judge, but no educator believes ILP even has a footing in the modern school, and young teachers[T1] may know the phrase as a 3-point multiple choice question on a test in Education Administration 101. The constant judicial and political weathering of school authority has left ILP nothing more than an anachronism from a bygone era. Many parents have been raised on weak schools, and their interference rather than collaboration has made ILP DOA. There is no ILP when kids are off campus, pontificated the judge.

Yes and no. ILP may be dead in the water, but schools are receptors for a student’s SOS. Come Monday morning, many middle school students will run to a guidance counselor, a dean, AP of Security with weekend, off campus happenings--complaints, fears, or intel they hope will prevent a disaster, to themselves or others. Very often they are stories of domestic issues, bullying, threats, racist comments, personal anecdotes. Many of them sown in cyber, in the park, the streets, the yard—for some kids the school is the only confidante. It may not be the narrow ILP of yore, but a child who feels trusting enough towards the school staff expects a level of protection, one he or she just lost.

HEAVY BURDEN OF PROVE TO INTERVENE. There’s a famous analogy every political science major learns. The federal government is either a layer cake, with hard rigid lines of authority in relation to the states, as defined by the Constitution, laws, policy and precedent. Everyone knows the lay of the land. The second view is that it is more marble cake, with jurisdictions, policies, power, resources, authority executed on a more collaborative, blurry org chart, not without its friction.

When it comes to school discipline and its ecology, Breyer has exposed himself as a layer cake in a marble-cake world. Certain school administration staff works with police, youth officers or SROs (NYC still can’t figure it out}, social agencies, mental and emotional health organizations, even religious leaders in the community to help students. Some situations that trigger such collaboration may not occur in schools. This ruling could hurt a school’s ability to assist in a child’s progress because behavioral issues off campus would now be off limits for fact-finding. While the Court said the schools have some leeway, no one will want to touch anything off campus for fear of lawsuits, which happen with more frequency than a kid “fuck you-ing” the school from the malls.

NURSERIES OF DEMOCRACY. WHAT?? Justice Breyer’s future on the court has been the subject of much speculation. Liberals fear his seat will be lost to another young right winger if he doesn’t resign, retire and give Biden a badly needed liberal voice on SCOTUS. After reading his opinion, he needs to retire…period. His 3rd piece of non-interference based on schools as free speech forums for students to express their political views free from school interference must have been written in his ivory tower before sending it to press.

Does he really think school administration gives a rat’s ass about what these kids say on their own time –or even in school—about politics, movies, dating, TV, fashion, or any other subject? Does he really think administrators fret over whether Johnny or Kim are cursing on their laptop from their bedrooms [T2] at 9:30 Saturday night? Kids will roll the entire gamut of obscenities and curses off their tongue before 4th period lunch. The number of teachers called stupid, mother abusers, self-abuser, etc. will fill more pages than the New York Times archives.

Also, I am trying to discern from Breyer’s inestimable reason how disciplinarians will discover such political heresies, unpopular utterances, and yes…the curse words that dare not speak their names. Schools do not spy on their kids nor plant microchips in their innocent unsuspecting wrists to give a direct link to the surveillance office. Perhaps Breyer, while writing the majority opinion, experienced an inner John Nash moment while watching A Beautiful Mind.

No one cares, Judge. No one is listening. Schools do not hire staff to spy on students who don’t even talk politics except to repeat what they hear at home. Sex, drugs, rock and roll rather than the Greek Wars and nuclear energy still dominate the mouths of the roiling adolescent. To listen to Brandi Levi’s lawyers, liberal phalanx, and the majority opinion, one gets the impression the schools could put the Russians to shame on domestic spying. Let me repeat to Justice Breyer: no one gives a damn what the students say out of school. How much they curse. Who they want to become president. Why they hate Trump or Biden. Or the Supreme Court. No one has the time, no one has the inclination, no one cares. End of story. Like current politicians pushing voter suppression laws in the guise of election integrity, Breyer provides an answer to a problem that doesn’t exist.

But here’s the rub. The bedrock issues relegated to the shadows are school safety, discipline, and order. New York City for years operated under a simple premise. Yes, you have to show a strong connection between off-campus behavior and the school building, but any kind of activity threatening the welfare and stability of the campus ipso facto warrants investigation and possible disciplinary measures. If off-campus activity potentially endangers the school community, the dean and assistant principal now face a whole series of legal questions before they can even look into the problem or face accusations of First Amendment violations. Let’s add one more item to the list of what keeps school safety officers up at night. Apparently, the Supreme Court couldn’t give a rat’s ass about any of it.

Maybe in Exeter or Phillips Academy or the Hunter School, places known for academics and upper class snobbery do these basic concerns of the lesser advantaged public institutions fall on the back burner. Also, as private enterprises, they live by different rules from the plebeian abodes of most school children. But those vested with the safekeeping of public schools, especially in urban areas have no such luxury. Deans, Assistant Principals of Security or Discipline, walk in to work Monday morning with worst case scenarios of a dozen incidents germinated on Friday running through their minds like torpedoes. Did the ethnic slur turn into a schoolyard rumble; Did Sue continue her bullying online; Is Kim’s crush on another boy going viral when someone stole his phone and private, intimate messages were on there.

Not enough discussion was had about the safety implications of this decision, by the parties involved. The majority opinion held schools do have a right to intervene in some off campus activity, but without offering an elegant, effete three-point standard. School officials will have to show linkage of in-school interaction that started the incident and off campus escalation. Yet that may not be enough, Breyer covered his magnificent seven’s black-robed butts by stating the obvious in a vacuum

There were girls who were upset about the postings, and the cheerleader who made varsity could have easily been a target for retribution, if not from Brandi, maybe a friend, a boy trying to impress her. What would the ruling be if violence or bullying followed? A disturbed adolescent among the 250 who received the posts might commit dangerous acts ins school. The court talked about severe bullying as a threshold to cross for off campus involvement but left it ambiguous. A simple “Fuck You” can be severe if the consequences result in harm. Sorry for your daughter’s injuries ma’am, but we were huddled up trying to figure what part of Breyer’s Triangle we could use to be proactive. We could not see the printouts because it was off campus, free speech, not during a school activity time. She is on her own.

The next school stabbing, shooting, assault or massacre will fall on school officials who decided they could not intervene because the situation was off campus and non-school related. He hung the staff who work in safety and discipline out to dry, and gave the lawyers a field day. Robert Hardaway wrote that, in a lawsuit against a school, any good lawyer will try to knock down the good faith principle, another gem from SCOTUS past. Also, an equally serious charge is that the school did nothing when made aware of a situation. Now, SCOTUS applied the Gordian knot to resolving critical safety issues with this decision. Off campus issues were always a bit fuzzy, but there were ways to probe a potential exigency. These are now cutoff because talking to possible perps is now unconstitutional, as written record about the intervention and findings is a disciplinary action needed to be filed. When as student’s head is busted or nose broken, parents and a panicky district want to know what the school did. It is legal protection that you did your job in good faith. Yes, if the assault happened in school, it could be dealt with. A workable case –did it start in school, did it start off campus, is it protected speech and does the school even have the right to intervene to determine that—may give way to staff, students, or visitors being harmed.

“Tell them I came, that I kept my word”. So spoke the horseman in Walter de la Mare’s brilliant poem “The Listeners”. At the heart of the intense work is a man committed, driven to ride alone to a house inhabited by phantoms just to declare his fealty to his honor, his word. Maybe among lawyers keeping your word of honor has lost its luster of integrity, but for young people it is one of the lessons without a grade, but whose mark lasts a lifetime. Pledging to live by certain conditions to be on a team is also a vow to yourself. It builds character, teaches responsibility, holds you accountable. Living up to your word has more value than a bitcoin, as it sometimes forces self-sacrifice and hard choices, an ideal to achieve, based on a promise to the whole of which you are a part. We like to think organized sports and competition shape the life for future productive and admirable behavior. Central to this concept is the teammates’ willingness to honor their commitment. There is a price to be paid when you breach the oath taken, the contract on which you put your name, the deal you made with your team, your mates, yourself.

This is what all the cheerleaders signed onto when they tried out for the squad. But Brandi Levy, her lawyers, parents and the Supreme Court held a different standard. To the girls honoring their voluntary agreement to become cheerleaders, to Brandi Levy, who accepted the same terms of her own free will, and to students everywhere, Breyer and his own oath-taking comrades on the Court taught a valuable lesson: don’t worry about it, your word means nothing.