Justice Thomas: Cheer Ruling Ignores Precedent, Leaves Confusion

Usually a staunch defender of constitutionally protected free speech, Supreme Court Justice Clarence Thomas was the lone dissenter in the 8-1 decision Wednesday, noting the decision to defend a cheerleader's off-campus speech against school discipline is dangerous legal precedent.

Thomas cites loco parentis – Latin for a substitute parent – and argues the decision ignores past precedent, fails to define a school's authority, particularly with regard to speech off-campus, and does not determine whether the speech was off or on campus, despite being sent to teammates and classmates who may or may not have been on campus when receiving the message.

The majority decided a high school cheerleader could not be suspended by the school or its coach for posting a Snapchat that included a picture of Brandi Levy, then 14, raising her
middle finger with the caption "F*** school" and "f*** cheer."

"The Court overrides that decision — without even mentioning the 150 years of history supporting the coach," Thomas' dissent read. "Using broad brushstrokes, the majority outlines the scope of school authority. When students are on campus, the majority says, schools have authority in loco parentis — that is, as substitutes of parents — to discipline speech and conduct.

"Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus?

"Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome."

Thomas added historical legal precedent had previously given schools some measure of authority to discipline students.

"A more searching review reveals that schools historically could discipline students in circumstances like those presented here," Thomas' dissent continued. "Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent."

Say for instance, following Thomas' reasoning, if a cheerleader made the gesture and statement departing an event while she was technically off campus.

Thomas wrote past "cases and treatises" had found "public schools retained substantial authority to discipline students."

"And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment," he added.

Also, Thomas argued, "'truancy is an act committed out of the school,' schools could regulate it because of its 'subversive' effects on the 'good order and discipline of the school.'"

"The majority declines to consider any of this history, instead favoring a few pragmatic guideposts," he continued. "This is not the first time the Court has chosen intuition over history when it comes to student speech. The larger problem facing us today is that our student-speech cases are untethered from any textual or historical foundation. That failure leads the majority to miss much of the analysis relevant to these kinds of cases.

"The Court, however, did not make that (or any other) argument against this historical doctrine. Instead, the Court simply abandoned the foundational rule without mentioning it."

Thomas concluded, the location of the speech is a tricky one to define for future precedent and requires more clarity.

"The location of her speech is a much trickier question than the majority acknowledges," he wrote. "Because speech travels, schools sometimes may be able to treat speech as on campus even though it originates off campus. Nobody doubts, for example, that a school has in loco parentis authority over a student (and can discipline him) when he passes out vulgar flyers on campus — even if he creates those flyers off campus. The same may be true in many contexts when social media speech is generated off campus but received on campus."

This case will make further decisions in relevant cases difficult, he concluded.

"The Court transparently takes a common-law approach to today's decision," he wrote "In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an 'example' and 'leav[es] for future cases' the job of developing this new common-law doctrine.

"But the Court's foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

"Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent."