Three former student school board members from Maryland are leading an effort to influence a Supreme Court case they say could have significant implications on students’ right to free speech.
A group led by Baltimore County’s Noureen Badwi and Montgomery County’s Matt Post and Eric Guerci filed an amicus brief Wednesday in hopes of affecting the court’s decision on Mahanoy Area School District v. B.L., a case that goes before the high court later this month.
The court will determine whether a public school district has the power to discipline a student, in this case a 14-year-old girl from Pennsylvania who made vulgar comments on Snapchat about school and the cheerleading team in 2017, for off-campus speech.
The amicus brief, filed by Washington, D.C.-based law firm Deutsch Hunt, is a request by a third party for the Supreme Court to consider the group’s perspective. The brief argues that the punishment levied against the student — a one-year ban from participating on the cheerleading team — violates her First Amendment rights since the speech was nonviolent and occurred off campus.
Joining for the brief were 192 current and former student members from 28 different states and territories — including 67 from Maryland.
The group hopes the high court upholds the 3rd U.S. Circuit Court of Appeals’ ruling last spring in favor of the student.
“Of course, schools should be able to discipline students for bullying, harassment and threats of violence on or off campus. But the rule the school district is proposing here goes way too far,” said Post, a junior at Yale and the 2017-2018 Montgomery County student school board member.
“The [Mahanoy Area] school district is suggesting they should be able to discipline students for anything they say that involves the school. We’re arguing, from our perspective as student policymakers, that kind of rule would kill profoundly necessary speech — speech that not only student members need to hear, but all school board members need to hear in order to make sound, informed decisions on policy matters before them.”
Badwi, Guerci and Post organized the brief that includes current and former student members from Alaska to California to Guam.
“We saw an opportunity for our unique perspective to be valuable in shaping the court’s opinion,” said Guerci, who is a senior at Princeton and served as Montgomery’s student member from 2015 to 2017. “We think we have a perspective that no one else can provide, and we hope we can influence how the court thinks about this issue, which will impact students’ educational policymaking for decades to come.”
The brief, its organizers say, is the first nationwide effort of this magnitude by student school board members. They said they were motivated by an amicus brief that was filed in a Howard County Circuit Court case in February. Two parents had sued the Howard County Board of Education over the voting rights of its student members, arguing it violated Maryland’s constitution.
More than 100 former and current student members in Maryland joined to file an amicus brief, saying the parents’ lawsuit was an “egregious attack” on student representation. The parents lost the lawsuit in late March, as Judge Richard S. Bernhardt wrote in his opinion that the student member position is not in violation of the Maryland constitution.
“We mobilized very quickly,” said Badwi, the 2019-20 State Board of Education student member and one of the organizers for the amicus brief in Howard County. “The impact we had in the [Howard County] lawsuit to find and mobilize so many student members of the board throughout history made us realize the power that we could have at the Supreme Court.”
The story of Mahanoy Area School District v. B.L. begins in 2017.
A freshman at Mahanoy Area High School didn’t make the varsity cheerleading team. One Saturday night, outside a convenience store, she posted a photo of herself and a friend on the social messaging platform Snapchat holding their middle fingers up with the caption: “F--- school, f--- softball, f--- cheer, f--- everything.” She posted another snap that day bemoaning why she and a friend had to stay on the junior varsity cheerleading team while other underclassmen made varsity.
Both Snapchats were deleted within 24 hours, but the cheerleading coaches suspended her for the year, citing team rules, and said she could try out as a sophomore.
The student sued the school district, and the case made it to the Court of Appeals for the 3rd Circuit last June, when the court ruled in the student’s favor. The appellate court said the First Amendment did not allow public schools to punish students for speech when off school grounds, and the district challenged the ruling to the Supreme Court.
“We have to think of this as not only one incident at one school in one cheerleading club, but instead as all speech at all schools in all states,” said Guerci, who studies public and international affairs at Princeton. “This isn’t about whether ‘B.L.’ should have been removed from the cheerleading team or not but about whether generations to come will have the ability to speak freely off campus.”
The Supreme Court will begin hearing oral arguments April 28.
The main issue for the court’s nine justices to decide is whether the famous Tinker v. Des Moines case applies to speech that occurs off campus.
Tinker v. Des Moines Independent Community School District, a landmark Supreme Court case in 1968-1969, determined that public schools could regulate speech if it could disrupt activity at the school. The decision, in favor of the school district against the high school students who wore black armbands to protest the Vietnam War, led to the “substantial disruption” test to determine when school districts can discipline students for speech.
“It’s really a line-drawing exercise for the Supreme Court,” said Hyland Hunt, a founding partner at Deutsch Hunt who filed the brief. “[The court] will try to figure out where the boundary is that permits students sufficient freedom and vindicates their First Amendment rights, while also permitting schools the ability to regulate things that most people — on both sides of the case — agree they should be able to address so they can preserve a learning environment.”
Post believes Mahanoy Area School District v. B.L. could become a landmark case.
“Most of the student free-speech cases that have landed at the Supreme Court concern speech that occurred on school grounds,” said Post, who studies ethics, politics and economics at Yale. “This is likely to be the first time the Supreme Court really considers whether schools can regulate off-campus speech.”
Among the 67 amici from Maryland are current and former student school board members from 18 of the state’s 25 school boards, including 13 from Howard, 10 from Montgomery, eight from Baltimore County and seven from Anne Arundel. The current State Board of Education student member, Jason Wu, signed onto the brief as well.
Léo Corzo-Clark, a student school board member for the Albany Unified School District near Oakland, California, is one of 55 current and former student members from California listed as amici. When he first heard about the brief, he was excited to sign on because he’s experienced firsthand the stifling impact some school policies can have on students’ speech.
“In my own work as a student board member and working in education advocacy, I’ve experienced threats of discipline for criticizing the school or trying to gather student voice,” he said. “Sometimes the adults don’t want to hear that type of criticism.”
Guerci said Maryland is the “SMOB capital” of the country — SMOB is the acronym some use for student members of the board. Most school boards in the state’s most populated counties have student members with voting power.
In Maryland, no county’s residents have been more focused on a student board member than Howard. In addition to the lawsuit that the parents lost, a delegate in the General Assembly filed legislation, which later died in committee, to lessen the voting influence of the student member.
At times, even, the rhetoric among some Howard County residents, mostly in community Facebook groups, about the board’s student member, Howard High senior Zach Koung, reached levels that led Howard schools Superintendent Michael Martirano to rebuke the comments as “online bullying.”
“I think what’s pretty clear here is that adults aren’t getting what they want, and they’re blaming it on students,” said Guerci. “That’s not democratic; that’s finger-pointing. We understand there are some very real threats on students’ speech, and we have to confront those.”