Skip to main content

Supreme Court Oral Argument: Will a New Updated Test Supplant Tinker?

A A A

Article

Melissa Rawlinson has provided an update on BL v. Mahoney. Here, Melissa shares observations of the April 28, 2021, argument in the United States Supreme Court.

On the last day of its calendared oral arguments for this term, the Supreme Court Wednesday took up the case of the Pennsylvania cheerleader who used Snapchat to vent her frustrations of making the JV—instead of varsity—squad, resulting in her suspension from the cheerleading team for a year. The argument was lively, lengthy, and thoughtful and repeatedly peppered with hypotheticals and what ifs that the Justices hurled at the attorneys attempting to pinpoint the proper test and analysis for student speech that originates off-campus.

With the current COVID-influenced structure of oral argument by teleconference, the Chief Justice rolled through the Justices by seniority to allow questioning of the attorneys, thereby revealing the Justices’ thought processes as they look closely at this well-established precedent related to student speech. Many of the Justices seemed to be grappling with whether to make a broad pronouncement on student speech, hinting at a new post-Tinker1 or Tinker-plus test that would provide guidance to schools confronting the ubiquity of student cellphone and online use in the digital age or to confine the answer to a simple “yes” or “no” that Tinker can apply off-campus. In the midst of the conversation, there appeared to be uniform agreement with the Justices and the parties that schools can regulate speech that is bullying or threatens violence, but they differed on the proper justification of that regulation. Similarly, some Justices expressed some sympathy that the cheerleader’s speech at issue was normal teenage expression and that free speech should not curtail the normal discourse of a teenage life, much of which now takes place online (therefore potentially digitally preserved and disseminated) where—in the Tinker days—took place in person (and would disappear once uttered) between classmates. The varying tests proposed and analyses offered, while similar in terminology, differ—in part—because of a vacillation between focusing on the location, timing, and audience of the speaker in comparison with the impact and consequence (potential or actual) of the speech on the school community regardless of geography and intention of the speaker.

Many of the Justices queried whether the context of this student’s speech as it related to extracurricular and sports activities made the analysis different. Some posited the need for camaraderie and team cohesion created a possibility that there could be additional regulation of speech in these areas with Codes of Conduct that athletes and participants agree to as a condition of playing the sport or joining the activity.

The Solicitor General’s office appeared on behalf of the Biden Administration in support of the school district with its own proposed test. Both the school district and the Biden Administration seek clarity on a test that school officials can apply to both protect the free expression of ideas and ensure the safety and integrity of learning environments.

The Court will deliver its opinion before the end of the term in June.

__________

[1] Tinker v. Des Moines Indep. Sch. Dist., 393 US 503, 89 S Ct 733, 21 L Ed 2d 731 (1969).