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Travis In Austin

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20 minutes ago, dwilawyer said:

School kids are, de facto, denied First Amendment rights to anything they say--because they are public school kids.  And they can't just change public schools or public school districts if they disagree. The system as it's currently constituted doesn't allow for that.

That quote in the WP article is an incorrect statement, Tinker was pretty clear that students have 1st Amendment rights as long as it doesn't disrupt school (wearing black armbands to class during Vietnam War was protected non-verbal expression, school couldn't discipline students unless they could demonstrate conduct caused a "disruption."

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7 hours ago, dwilawyer said:

Yes we are, but the doctrine you are referring to is "at will" meaning you can be terminated for any reason, or no reason as long as it is not because of the persons gender, race, religion, national origin, being over 40, or.a recognized disability under the ADA.

 

You have to pay unemployment benefits (which are insured)  and face increased rates unless you terminate "for cause."

 

"Right to work state" refers to an employer not being allowed to deny employment to someone because they are not a member of labor union or other labor organization. 

Correct.  Thanks for clarifying. 

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9 hours ago, dwilawyer said:

That quote in the WP article is an incorrect statement, Tinker was pretty clear that students have 1st Amendment rights as long as it doesn't disrupt school...school couldn't discipline students unless they could demonstrate conduct caused a "disruption."

I expect that the "Tinker test" might be further amplified and perhaps strengthened (or changed) in the upcoming case. 

 

From personal perspective, it's still clear that school administrations are still pushing back hard on that legal test or even unbalancing the test since school administrations still seem to make a high number of decisions limiting student freedoms, especially in light of the last 25 years or so with the advent of smart phones, social media, and blogging--which didn't really exist 25 years ago as a significant factor in public life.  We're again having to redefine what that balance now means in light of the effectiveness of these new technologies. 

 

The limitations of First Amendment rights (on both ends of the spectrum) seems to be more significant of late. Clearly, this is also an opportunity to address some of the newer SCOTUS justices' perceived "bias against conservatism", perhaps shoring up student freedom of speech against school administration perceptions of what constitutes  "disruption". 

 

We'll see what comes.  It's usually a mixed bag (as viewed from individual point of view)--no one is fully satisfied with the outcome.  It's a tradeoff, as are all decisions at that level.

 

For the forum participants that are more narrowly focused on matters of music and audio...

 

 

Here's one that's a lot easier to watch (and listen to):

 

Chris

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2 hours ago, Chris A said:

We'll see what comes.  It's usually a mixed bag (as viewed from individual point of view)--no one is fully satisfied with the outcome.  It's a tradeoff, as are all decisions at that level.

The Court was looking for a "Test" to apply, the questions and answers were pretty entertaining.

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5 hours ago, dwilawyer said:

The Court was looking for a "Test" to apply, the questions and answers were pretty entertaining.

See https://www.c-span.org/video/?510036-1/mahanoy-area-schools-district-v-bl-oral-argument

 

All Justices seem to have problems with the degree of punishment in this particular case (implying to me that they believe that the school administration was out of bounds in this particular case in the degree of punishment...and that it took a court case to rectify the situation--which the student won), AND the problem of the complexity of applying both Tinker and other First Amendment restrictions.  It sure sounds like the Court is going to modify some uses of Tinker unless there is a clearer standard or standards to apply.

 

Chris

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4 hours ago, Chris A said:

See https://www.c-span.org/video/?510036-1/mahanoy-area-schools-district-v-bl-oral-argument

 

All Justices seem to have problems with the degree of punishment in this particular case (implying to me that they believe that the school administration was out of bounds in this particular case in the degree of punishment...and that it took a court case to rectify the situation--which the student won), AND the problem of the complexity of applying both Tinker and other First Amendment restrictions.  It sure sounds like the Court is going to modify some uses of Tinker unless there is a clearer standard or standards to apply.

 

Chris

I'm a bit more worried. The student won in the Circuit Court, the School District is the Petitioner who asked the Court to hear the case. If they didn't want to mess with it they would have just refused Cert.

 

Instead they took it up on a very narrow issue of whether the proper "test" was applied, and if not, what should the test be. 

 

Question on what is "school speech", can a kid tweet answers to Geometry homework, etc., etc. At least 4 of them hope to monkey with it (that how Cert. is granted) and it could come out looking like a Camel. One response was that District's could have a monitor to look at all social media posts and make a determination whether it was constitutionally protected or not.

 

 

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I'm similarly worried.  As the Q&A went on, the last attorney (head of the ACLU?) was being grilled, and several of the justices seemed pretty "spring loaded" in their expectations to their hypothetical questions (at least to my legally untrained ears)--and they tended to keep cutting him off when he started to defend his answers to their, well, not very fair questions. 

 

I think the Third Circuit court basically got the decision right in a reasoned and workable way--at least from what I heard.  Why would the SCOTUS mess with that ruling?  It seemed pretty well thought out and workable.

 

What surprised me was the questioning from the specific justices--the conservative justices all seemed to ask questions that, to me,  obfuscated or distorted the issues. But then Kagan and Sotomayer also seemed to join in on the same type of questions, clearly trying to unbalance the decision of the Third Circuit court--not to simply understand--like they had already made up their minds on the answers.  Some of the justices seemed to listen more carefully to the answers (Gorsuch & Kavanaugh, for instance, IIRC). 

 

I assume that these were preliminary Q&As. (I'm not familiar with exactly how the SCOTUS works from a procedural viewpoint.) So I'm still hoping that reason will prevail, and the students' First Amendment rights become the standard for out-of-school issues.  (It's the only interpretation that seems to make much sense to me.) Trying to extend Tinker to the entirety of the student's lives seems like an unreasonable power grab to me--in order to solve issues that Congress hasn't yet passed laws to control. I think that a lot more kids are going to be "shut down" or even quitting public school if the school administrations are armed with more power over the kids lives in order to "assure order".  If it's that bad, then why doesn't Congress take up the matter?  It's their bailiwick.

 

Chris

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  • 1 month later...

Ruling of the case finds for the First Amendment rights of the student:  https://www.washingtonpost.com/politics/courts_law/supreme-court-cheerleader-snapchat-free-speech/2021/06/23/09b905ba-d42a-11eb-a53a-3b5450fdca7a_story.html

 

The outcome of the trial was very different than the Q&A session--a surprise, IMO.  It seems that SCOTUS took the case to merely narrow the scope of Tinker applied by the Appeals court, but did not reverse the Appeals Court decision.

 

Chris

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On 4/28/2021 at 12:17 AM, dwilawyer said:

That quote in the WP article is an incorrect statement, Tinker was pretty clear that students have 1st Amendment rights as long as it doesn't disrupt school (wearing black armbands to class during Vietnam War was protected non-verbal expression, school couldn't discipline students unless they could demonstrate conduct caused a "disruption."

Speech causing disruption... Who'd a ever thunk?

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11 hours ago, Chris A said:

Ruling of the case finds for the First Amendment rights of the student:  https://www.washingtonpost.com/politics/courts_law/supreme-court-cheerleader-snapchat-free-speech/2021/06/23/09b905ba-d42a-11eb-a53a-3b5450fdca7a_story.html

 

The outcome of the trial was very different than the Q&A session--a surprise, IMO.  It seems that SCOTUS took the case to merely narrow the scope of Tinker applied by the Appeals court, but did not reverse the Appeals Court decision.

 

Chris

The Court's questions during oral argument are frequently for the benefit of the other justices (trying to sway them, or point out flawed logic) as opposed to trying trying to have questions they have about the facts of the case, etc. I know that seems odd, but that is usually the case. This is the reason why it is very typical to see the final opinion in SCOTUS cases not line up with what was being asked and answered in oral argument.

 

My reading of the majority and concurring opinions, together with the lone dissent (Thomas) leads me to believe that Tinker is alive and well and stronger than ever. This is just one passage from the opinion:

 

"Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the school’s action. Tinker, 393 U. S., at 514. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats."

 

The appeals court (3rd Circuit) when it affirmed the trial court's decision in favor of the student held that schools could not regulate any off campus speech, under Tinker or otherwise. That 3rd Cir. decision was a little troubling to at least 4 justices of the Supreme Court and they granted cert., presumably to explain how the 3rd Cir. appellate court got that wrong. The majority held that they did not agree that with the notion that "the special characteristics that give schools additional license to regulate speech always disappear when a school regulates speech that takes place off campus." 

 

The School Board was trying to get the Court to create a clear rule that would expand  to speech outside of school. They got the majority to agree that there could be certain limited situations where off campus speech could be regulated by schools, but the majority was clear this wasn't the time or the case to determine what exactly would constitute off campus speech that would be subject to school discipline that ordinarily would be protected under the 1st Amendment. They mentioned extreme bullying, cheating on school work (which isn't protected by the 1st Amendment so not much of an example), hacking into school computers (also not protected by 1st Amendment, so not much of an example), or threats against teachers (also not protected).  So the school district got a bone, the majority believe there could be a situation where off campus speech that would normally enjoy first amendment protection, could be regulated by a school, and if there was a violation, could be disciplined - but they were unwilling to say what age/grade levels that could occur, what standard it would be other than Tinker and so it wasn't much of a anything for the district. 

 

I think the district really took it on the chin with this part of the opinion:

 

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

 

Thomas' dissent is worth a read because it shows how using originalism (what was the common law at the time of the amendment in question, here the 14th) to interpret the Constitution can lead to some weird and twisted logic. He argues that at the time of the 14th Amend. teachers and schools could discipline for off-campus speech and therefore it is an easy result, reverse the case. You have to throw out stare decisis (rule of precedent) to get there, and you have to ignore the issue in the case: Is Tinker limited to on-campus speech, or in the age of the internet, virtual classrooms, social media, are their situations where a school would have enough of an interest to be able to regulate speech that occurs off campus? Looking at what the law was 150 years ago sort of misses the mark.

 

 

 

 

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2 hours ago, dwilawyer said:

Thomas' dissent is worth a read because it shows how using originalism (what was the common law at the time of the amendment in question, here the 14th) to interpret the Constitution can lead to some weird and twisted logic. He argues that at the time of the 14th Amend. teachers and schools could discipline for off-campus speech and therefore it is an easy result, reverse the case. You have to throw out stare decisis (rule of precedent) to get there, and you have to ignore the issue in the case: Is Tinker limited to on-campus speech, or in the age of the internet, virtual classrooms, social media, are their situations where a school would have enough of an interest to be able to regulate speech that occurs off campus? Looking at what the law was 150 years ago sort of misses the mark.

To me, Justice Thomas seems to be trying to apply originalism like a straightjacket, a blunt instrument, if what you say is true just above.

 

The focus of arguments in this case seems to be "how to handle First Amendment rights in a digital age".  None of the justices seems to think that the ease of transmitting information digitally wasn't the issue--it clearly is.  The test--classroom disruption (as per Tinker)--seems to be used "after the fact" to regulate digitally transmitted free speech, not a test that the students themselves can really use before speaking out to help guide digitally transmitted speech--even that speech which will "go away" after a short period of time. 

 

This might be a legal strengthening of the test's applicability (Tinker), but in my view, it isn't one that's useful to the students to know where that line really is--until afterwards, then they are rolling the dice to see if it is judged by school officials to create "significant disruption" or not. 

 

How about emails?  Private BBs set up to limit access to just a few people (as it seems in this case)?  Facebook and Snapchat are clearly not considered private conversation now, even if the audience is regulated by the student on an individual case by case basis (which was not singled out by the court), or that the messages would "time bomb" out of existence (the court appears to be considering this, but doesn't appear to use this in its decision). 

 

Even in this rather innocuous case (an outburst of emotions on a time-bombed message board that the school itself probably shouldn't be monitoring because it's so far away from school), students still appear to be "on a short leash" by school administrations as compared to the early 1970s when Tinker was first applied widely.

 

If the girl had simply spoken (in person) during lunch time at a fast food restaurant, or even in a school cafeteria to a bunch of friends, she would have had much more latitude to speak her mind, and ostensibly without consequence--since spoken speech in real time isn't usually captured because there are laws that protect individuals from being recorded without consent (just like teachers). And spoken speech is further protected by the laws that require certification of just who is speaking on recordings--which is merely obfuscation of uniquely identifying the source of the speech--before punitive action can be taken by school officials.

 

The net result is that the students still continue to lose more sensible free speech rights than the prior appeals court decision apparently supported--if that speech is digitally transmitted--anywhere.  This question--what constitutes free speech in the digital age--continues to be asked, and useful answers seem to keep getting farther and farther away. 

 

No one side has won much here for all the effort expended in the string of cases leading up to this decision. In fact, the line actually seems more blurry now than before this latest decision. The message seems to be, "you can think what you like, but if you are efficient at transmitting what you think to others, you're not allowed to do that...". 

 

Remind me, what is the concept of "free speech" again?

 

Quote

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

 

Chris

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14 minutes ago, Chris A said:

If the girl had simply spoken (in person) during lunch time at a fast food restaurant, or even in a school cafeteria to a bunch of friends, she would have had much more latitude to speak her mind, and ostensibly without consequence--since spoken speech in real time isn't usually captured because there are laws that protect individuals from being recorded without consent (just like teachers). And spoken speech is further protected by the laws that require certification of just who is speaking on recordings--which is merely obfuscation of uniquely identifying the source of the speech--before punitive action can be taken by school officials.

It she had spoken at the school cafeteria, it is on campus speech, and they may have been able to discipline her for the vulgarity part under in loco parentis. At the fast food restaurant they have no way to discipline either under in loco parentis or Tinker. 

 

The law in Texas is that if one person is aware that it is being recorded, it's legal. But it doesn't need to be captured, if she said that and it was reported, then it's going to be a credibility contest. That wasn't at play here, and rarely is in 1st amend. cases. When asked, the person usually says, darn right I said it, but that's my right. That is left open in the opinion. Off campus, they have no shot: school isn't in loco parentis off-campus, so they can't do anything about the vulgarity, and they have to show substantial disruption to even get in the door.

 

Not sure on the "certification" issue, what you are describing are under the law of evidence and are admissibility. All that is required to play a tape in court is for someone who is familiar with an individual's voice to say "I have listened to the tape, and that is Susie Cheerleader's voice, I am familiar with her voice because she is in my class, and/or I'm her coach." They can get anyone to authenticate the tape, a teacher, counselor, another cheerleader. The same is true on phone video. But you don't even need a tape, or video, recording, etc., a witness who heard it is sufficient to get the ball rolling, then it would be up to judge or jury to determine what was said, assuming they deny saying it. Texting, email, snap chat that is captured, etc. you are correct, takes deniability out of the equation.

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23 hours ago, tube fanatic said:

Forgive me for asking, but isn’t the above discussion political?  If not, can we have a discussion about the movement to end abortions in this country while funding them elsewhere?

 

Maynard

 

The way I see your comment: 

 

If the arguments are wrapped up in political party platforms as "planks" of policy and that are inherently divisive in nature, it's political. 

 

If however it's on legalities of the court proceedings, and not really a central political plank or theme--then it's probably "not political"--as is emphasized in this particular thread.  All of the above is based on legal arguments based on the First Amendment to the US Constitution--freedom of speech vs. abridgement of those rights for ease of smoother functioning of public school systems...who must also teach free speech to those same students, too.  We live in a society based on rule of law (in the US). So it's of general interest--a subject which is in-bounds for the Lounge.

 

If that is now a political issue, I was not aware of  it, and I will apologize for tacking this discussion onto the bottom of this thread.  I do use the voices and expertise of this forum to better gauge the general mood and biases of members--who represent a small cross section of the general public--to stay informed. 

 

I think this discussion is actually a lot more useful than talking about most of other subjects raised in the Lounge subforum...

 

Quote

"Talk about almost anything that's on your mind here. Sports, News, Music, Movies, Gaming, Computers, etc."

 

And the discussions here are civil and apparently informed (I hope).  Travis is an attorney. So are a few others on this forum (which itself is an interesting subject: why do lawyers like hi-fi?).  Making use of their expertise to gauge public opinion is a good pastime, at least for my needs.  I can't get that on Facebook or in the comments sections of online newspaper articles.  (I don't belong to Facebook or Snapchat--and never will.)

 

Chris

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Setting aside everything else

Shouldn't the question be "can schools regulate or limit speech outside of schools"?

The answer should be NO

 

If it's outside the school and not a Criminal or  Civil code violation,

what right does the State have to inject itself ?

Make no mistake, Schools represent the State.

 

The purpose of the schools is to produce obedient citizens

with little to no critical thought, rhetoric or reasoning skills.

All of which would require, mandate, questioning what is coming out of the teacher's mouth and the textbooks.

 

The State of Mass had higher literacy rates when almost everyone was home schooled

Public Schools as the norm are nowhere near the original US education system.

 

If I recall correctly

Public Schools were created to assimilate millions of non English speaking European immigrants

Into English Speaking, an understanding of US Political and Legal Systems and skills for self-sufficiency and earning a living.

Many or most leaving school when they turned 13 to enter a trade or other employment

Child Labor Laws were championed by Unions, cutting off the supply of people ready, willing and able to join the workforce in entry level positions.

At this point, public schools transitioned into warehouses for people who should have already joined the workforce, or gone on the pursue advanced studies and professions. Essentially wasting people's time for 4 years to keep them off of the labor market.

 

 

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1 hour ago, Bubo said:

Make no mistake, Schools represent the State.

Sort of.  Private schools only serve to administer compulsory education to those under the age of being an adult and making their own decisions.  If this case had been about private schools, it might have been a different set of rules that applied ("might have" are the key words here).

 

1 hour ago, Bubo said:

If it's outside the school and not a Criminal or  Civil code violation, what right does the State have to inject itself ?

Ask yourself if a private school can set rules like public schools (in my experience, they often do this, and sometimes go far beyond what public schools require for continued attendance). It's a contract that the public schools don't get to make.

 

 

1 hour ago, Bubo said:

The State of Mass had higher literacy rates when almost everyone was home schooled. Public Schools as the norm are nowhere near the original US education system.

While this might be a consideration for the case discussed above, it is only cursory to the decision made--which is "smooth functioning of the schools". 

 

If you think about it, the real problem is between the parents and their school-aged children.  If the children were bought up to respect the institutions and the rationale for that respect were drilled into the offspring, my guess is that there would be far fewer issues.  Using the public schools themselves as platforms for political dissent (as was the case in Tinker) to me signifies that the parents care less about the smooth functioning of public schools than they do "individual First Amendment rights" of their children.  There's always a tradeoff, and "nothing's impossible for those that don't have to do it"...bystanders and perhaps parents vs. the teachers and school administration--and the students that want a good education.

___________________________________________________________________

 

One of the problems that I see in this line of discussion is that it is actually drifting from the SCOTUS case as highlighted above.  I think that's not a good direction to take this conversation.  Opinions on "public education in general" tend to become political on forums like this.  If the intent is to get this thread locked and/or hidden, that's an effective way to do it. 

 

Myself, I like the ability to discuss these cases with people that understand the law--on this forum.

 

Chris

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On 6/24/2021 at 8:10 AM, Chris A said:

If you think about it, the real problem is between the parents and their school-aged children.  If the children were bought up to respect the institutions and the rationale for that respect were drilled into the offspring, my guess is that there would be far fewer issues. 

 

Should students interrupt the teacher and classroom by standing and screaming Seig Heil, NO

But not all students should be in classrooms or schools, this goes back to the warehousing of people to keep them off of the job market.

This also goes to people having children to turn on the Govt cash flow, then dumping them on the schools for baby sitting.

I know people who run and have run school systems.

 

Quote

Using the public schools themselves as platforms for political dissent (as was the case in Tinker) to me signifies that the parents care less about the smooth functioning of public schools than they do "individual First Amendment rights" of their children.  There's always a tradeoff.

 

Agree, however Govt and the courts have largely disabled and replaced the parents,

try disciplining your kid and watch the govt reaction. Any kind of discipline.

The govt has taken on the role of the parents.

 

Quote

___________________________________________________________________

 

One of the problems that I see in this line of discussion is that it is actually drifting from the SCOTUS case as highlighted above.  I think that's not a good direction to take this conversation.  Opinions on "public education in general" tend to become political on forums like this.  If the intent is to get this thread locked and/or hidden, that's an effective way to do it. 

 

It's not my intent to get the thread locked

But much of what the Courts are doing is simply applying band aids on top of band aids

For problems in many cases of their own making.

 

Quote

 

Myself, I like the ability to discuss these cases with people that understand the law.

 

Chris

 

Laws are subjective and transitory, depending......

They serve policy goals of those who wrote them.

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3 hours ago, Bubo said:

Laws are subjective and transitory, depending......

They serve policy goals of those who wrote them.

This particular case was interpreting the US Constitution, specifically, the 1st Amendment, which was actually the 3rd amendment (of 12) that were sent to the states for ratification. Madison wrote the original Bill and proposed 20 amendments with a preamble, the House edited that and narrowed it down to about 17, it came out of the Senate as 12 amendments. 3 to 12 were ratified by the states, the original No. 1 and 2 didn't make it. 

 

Congress shall make no law . . . abridging the freedom of speech" I believe is how it goes. Seems pretty simple. Shall make no law. Yet Congress passed the Alien and Sedition Acts under Adams (the 1st one) in 1798. That law was used to destroy printing presses of the opposition and jail political enemies. Originally the Bill of Rights, including the 1st Amendment only applied to the federal government, then it was applied to the states by the incorporation doctrine. As Oliver Wendel Holmes said in Schenck back in 1919, the 1st Amendment does have limits, you can't yell fire in a crowded theater for example.

 

Schenck was arrested and convicted of violating the Espionage Act during WWI when he was critical of the draft. The unanimous court said that in times of war the Court should give more deference to Congress, even though it involved constitutional rights. This created the "clear and present danger" test which existed for 50 years before it was overturned by Brandenburg v. Ohio which established the "imminent lawless action" test.

 

What was Madison's policy goal when he wrote that amendment? That is actually a form of constitutional interpretation known as "originalism." What was the original intent of the Framers? There are a number of techniques used to try and divine that intent.  There are other schools of thought on how to interpret the Constitution (and the amendments thereto) like originalism (there are 5 subtypes of that, original meaning, original intent, etc.), textualism, etc. That is what Justice Thomas was trying to figure out, in a way, was what was the common law at the time that the the 14th Amendment was ratified, so he was trying to figure out what John Bingham's policy goal was with the 14th Amendment.

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5 hours ago, Bubo said:

Setting aside everything else

Shouldn't the question be "can schools regulate or limit speech outside of schools"?

The answer should be NO

 

If it's outside the school and not a Criminal or  Civil code violation,

what right does the State have to inject itself ?

Make no mistake, Schools represent the State.

The example that was given in the Amicus Briefs is the math teacher assigns homework and the wizkid posts the answers on social media every afternoon, in violation of school policy. 

 

Can a student attend a football game (away game) wearing a t-shirt that contains a vulgarity? Or that advocates the use of illegal drugs?

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