Law & Courts

Student School Board Members Flex Their Civic Muscle in Supreme Court Free-Speech Case

By Stephen Sawchuk — April 07, 2021 7 min read
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A group of nearly 200 current and former student school board members have filed a friend-of-the-court brief in a forthcoming U.S. Supreme Court case over students’ free-speech rights—the first major demonstration of organizing power for a constituency that often goes unnoticed in K-12 decisionmaking.

In their brief, the student board members side firmly with the student, B.L., who was disciplined by her school district over a vulgar Snapchat message she sent after failing to make her district’s varsity cheerleading team.

The case is the first the high court has taken that tackles students’ free-speech rights in the era of social media, a complex issue that engages with all of the benefits and downsides that that technology entails.

“We saw that this case, unlike a policy, could mean a permanent change to how schools operate,” said Noureen Badwi, one of the youth who helped organize student board members to sign onto the brief. She sat on the Maryland state board of education in 2019-20.

“That idea of that permanence and the nationwide impact would be really profound for students,” she said.

And the case is about more than just a ruling that could fundamentally change the balance of power between students and administrators in school. It’s also about civics education—and a test of what adults truly believe when it comes to schools’ role in nurturing civic engagement.

“For a lot of students and lot of young people, their first foray into civic engagement surrounds civic issues at school,” said Matt Post, the 2017-18 student board member in Montgomery County, Md., and now an undergraduate at Yale University.

“And if students understand that their school can punish or discipline them for anything they say about the school,” he continued, “it would chill that kind of incredibly important democratic political speech.”

Is social media a tool for good or ill? Administrators and students differ

The core test at issue is whether students’ speech off campus—but on social media—can still be “substantially disruptive” to school operations and therefore punishable. That’s the line established by the Supreme Court precedent in a pathbreaking 1969 case, Tinker v. Des Moines Independent Community School District.

Or, to reframe the most well-known line from the famous ruling: Does the schoolhouse door now stretch to encompass all of cyberspace?

What’s especially striking about the students’ response to that question compared to that of adults is how their respective perceptions of social media differ so fundamentally.

Most of the heavy hitters in the K-12 space, including the National School Boards Association, the American Federation of Teachers, and AASA, The School Superintendents Association, have all backed the school district in the case, arguing that district personnel need widespread ability to curb speech “directed” at schools that could be disruptive.

But in their brief, students argue that social media has allowed them to collaborate, develop relationships, find volunteer opportunities, and effectively organize—as youth involvement in the March for Our Lives movement, youth climate-change strikes, and racial-justice protests have all shown.

“The speed and effectiveness of modern social movements … is premised on the use of social media as an organizing tool,” said Post, who also works as the judicial advocacy associate for March for Our Lives. “If you want to mobilize people, engage people, educate people, from all walks of life, from all areas and backgrounds, the most effective way to do that right now is through the use of social media.”

Second, the students’ brief underscores that public schools themselves are a major governmental institution. By that definition, almost any speech that deals with school is in some sense political speech, and the Supreme Court must be cautious about regulating it, they said: Heavy-handed regulation would discourage students from civic engagement at large, they write.

Read All of Education Week's Award-Winning Civics Education Coverage

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That argument echoes a theme Education Week has written about extensively: how schools, via arbitrary dress codes, discipline policies, and other rules often send messages that undercut what’s formally taught in the civics classroom.

The students’ brief does recognize that schools should protect against bullying or threats of violence. Just as in a school setting, social-media speech intended to bully or belittle is not protected by the First Amendment, they say. (The U.S. Court of Appeals for the Third Circuit, which sided with the student, also acknowledged that such forms of speech fell outside of its ruling.)

California student board members have created their own organization

In a sense, the brief’s existence testifies to the power of social media tools in the hands of young people: Those tools were among the ways the youth organizers, including Badwi, Post, and Eric Guerci, Post’s predecessor on the Montgomery County board, identified 192 far-flung student board member signatories from among 28 states.

There is no national tally of how many districts currently have student board members, and their role differs greatly by state statute. But the organizers said they used Instagram and Twitter accounts to locate many potential signatories. News media written by students, for students, helped, too. Often, school newspapers were the only outlets that covered in depth what student board members were doing.

The amicus brief comes amid some other burgeoning signs that student board members are beginning to create more formal structures to advance their ideas.

About 60 of the signers are members of the California Student Board Member Association, a newly created membership group that aims to be a fully independent nonprofit and to advise student board members, serving a role parallel to the one the California School Boards Association does for adult members.

“It’s been such a challenge to be effective in a world where the stakes are completely against you,” said Zachary Patterson, 17, a high school junior and the president of the group’s executive cabinet. He’s also the first student board member for the San Diego Unified School District. “The adult perspective is often that you’re there to listen, or that you’re supposed to give the sports report. It really demeans the role of the student board member and weakens their ability to be effective.”

Because most student board positions last only a year, rather than the multi-year terms of other board members, the CBSMA will focus on condensed training so its members understand and work effectively within government processes. It will also engage in advocacy—promoting a Student Bill of Rights, for instance—and disseminate resources like draft resolutions members can introduce in their own districts.

“We need to prove to our adult counterparts that we are competent enough and that we understand this information,” Patterson said. “Legitimacy leads to more comfortable people and the ability to give [students] more rights.”

The COVID-19 pandemic is reshaping the contours of student voice, too

For Adam Fletcher, the executive director of Youth and Educators Succeeding, a nonprofit that supports youth voice, the Supreme Court case is emblematic of ongoing disputes over leadership authority and control in schools—and signifies ongoing distrust from school administrators about young people, their culture, and the technology they use.

Those issues have gotten more tense during the COVID-19 pandemic.

“When we’re in in-person [schooling], student voice is nearly unavoidable at any turn, whether you’re a teacher trying to administer an assessment or a counselor trying to advise students on what they might want to do after high school,” he said. “But in the pandemic, they’re just not talking about student voice anymore, as if it’s made irrelevant. It has screwed up this entire movement towards students having a role in decisionmaking. ”

And there has been a backlash in some quarters to the consequential decisions student board members have made, he noted.

In late 2020, after the Howard County, Md., student board member contributed to several deadlocked votes related to bringing students back for in-person learning, two parents unsuccessfully sued in state court arguing that the student board position was unconstitutional. Legislation that would have disallowed the student member’s vote from breaking ties was introduced in the Maryland statehouse and later died in committee.

If students understand that their school can punish or discipline them for anything they say about the school, it would chill ... democratic political speech.

(Maryland is the only state where some student school board members hold the same or nearly the same voting rights as other board members.)

But such efforts are not limited to Maryland. A recent proposal to strip the Kentucky state board of education of its nonvoting student member, a position established in 2020, got perilously close to passing.

The continued signs of student organizing are encouraging, but will need to be sustained through new routes and structures, Fletcher said.

“From my perspective, 20 years on, when I started working on youth voice, I could count on one hand all the people who were doing the work—it was that few. Today I can’t even get my head around it, it’s so much more diffuse,” he said. “The challenge becomes that it’s often not systematized or structured. We’re still in a really reactive mode with student voice.”

A version of this article appeared in the April 14, 2021 edition of Education Week as Student School Board Members Flex Their Civic Muscle in Supreme Court Free-Speech Case

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