we have five cases this morning and i think one of my colleagues would prefer to have this for my mother than the court next they were at one o'clock so we had least have three and a half hours or so ago and god school district in the case with the permission of the court i'd like to reserve for minutes for a bottle that's fine and if i may tend to one housekeeping item the th circuit issued its decision last monday on nov twelve the case was decided on the basis of qualified immunity and the lack of entity liability younger menow however there was some discussion of st amendment concepts better play here including the distinction between from the national curricular activity as opposed to being suspended from school i respectfully submit that this case is a close case in there are good sound arguments on both sides of the issue perhaps justice thomas best summarized the area of the law and in a concurring opinion in morse versus furniture rick where he said quote i'm afraid that our jurisprudence now says that students have a right to reading of frazier public school can meet out punishment for student speech any time anywhere irrespective of the student's parents fears of appropriate conduct and discipline and if you want to make it clear that is not our position it is nowhere near that broad instead the rule that we argue for in that prozac the facts and circumstances in this case is that school districts can create reasonable rules for eligibility for participation in extracurricular time compulsory voluntary activities including rules of conduct the program in this case c outside of class outside of the grounds of the school and i'm trying to figure a way how do how do i get around our and bank decisions and lay shaka and j s well there are several ways and it's critical that the distinctions be made and we agree that in j s and lay shock if you apply those cases we lose but we believe that the distinctions are critical and the distinctions are laid out in the last several pages of our brief and there are eight significant digits you're going to have to distinguish them because you know we the last thing a panel can do is over rule and then bank decision correct correct and they get in they are distinguishable near distinguish a ball in these ways number one we're dealing with an extra curricular activity those cases did not i don't burn those cases i mean  bank didn't distinguish among them was it isn't the issue when it comes to extracurricular activities or any activity that's fine killing thing for effect of that reasonable student and if that's so why does it matter if it's suspension or expulsion or getting kicked off of the team well in the united states supreme court in net veronica school district versus active clearly no the distinction between a regular school an extra curricular noni on was a th amendment case about safety and drug use in football and that lennox that does i don't see is something special about st amendment rights in an extracurricular context because that was very clearly tied to the safety of apple it's you with respect to the poor thing then when you're right here on here however the court made a statement quote by choosing to go out on a team they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally in veronica's public schools d they must submit to a pre season physical exam and they must acquire adequate insurance coverage we're signing insurance waiver maintain d a minimum grade point average and comply with rules of conduct dress you didn't want high school kids on performance enhancing drugs you want to be sure that there was a problem there i agree that that was a critical factor i interrupted you but the but the court made it clear that extracurriculars are different and that's one of the parts of the analysis when they said they voluntarily agreed to the rules and did miss case the student and the parents signed the rules and the student agreed that the rules were reasonable there's no limiting principle there let's imagine the cheerleading team says our mission is to prepare women to be homemakers so they can support their men and a cheerleader on saturday post a blog post saying i'm a feminist not think road the rules in this case there will be no toleration of negative information regarding cheerleading cheerleaders we're coaches this includes foul language and inappropriate gestures and this foul language inappropriate chester's was aimed directly at the cheerleading squad in the language  and les shock you had the the fake profile in j s and then the parody that was done in les shock correct so it's directed at individuals that are among the hierarchy of the school and what's the difference here a couple of things one thing it is that in that case there was no agreement to the rules in this case there is in that case one could argue the school district had no authority under the legal standards because section five hundred and ten of the school outlines the power and controlling extra curricular activities that were the st amendment trumps these you have not given us a principle you've just said if you sign this agreement to join the extracurriculars you signed it away but then you agreed you can't make someone sign anything away is it anything that would have a reasonably foreseeable of effect at school which is a very broad how do you how do we keep coaches from prohibiting anything they don't like and i believe that under the prohibiting anything they don't like that is a clear violation under the viewpoint concepts of the st amendment in a case where you're trying to teach students not to use profanity not to use profane gestures not to use foul language and what not to do this in a way that's going to adversely affect the team those rules are all that case they weren't dealing with student comportment but the terms of the waivers are much more specific and they seem to be valid things like games fundraisers and other events and i'm not sure that i'm following where you're getting when it's outside of those bounds particularly if a student is speaking on a weekend outside of school outside of any sporting event and even outside of the season the language also says quote there will be no toleration of negative information regarding cheerleading cheerleaders or coaches placed on the internet and of course so i think that's pretty clear that the internet social media is a going to be tolerated epitaph some conduct that had no meaning in the cheerleader the student could not identify it any meaning when asked what the meeting was she said she was just angry so we have the argument which was in our prefer that this is in a form expression where conveys no meaning where it has no expressive content worthy of protection by the st amendment student  isn't that a message in fact a criticism of the policy that's being applied by the teen how is that not an opinion and how is that not a communicative message well if you can't get it from looking at the words she used  we're looking at the gesture she made and she can articulate what it meant or what message she was conveying and then you get back to the morse versus frederick idea where the court said that the reasonable interpretations of the conduct by the administrators will be upheld that was a school sponsored activity correct but it's still gets to the application of the rules that were this the conduct took place during during the school sponsored activity again we're talking about something that's off school grounds not during school hours with a group of friends and somebody looking at it but correct and  i see that my time is up so i don't know if you want me to answer your question thank you rule that school districts can create reasonable rules for participation in extracurricular activities including rules of conduct we agree but school districts cannot impose rules on students involved in extracurricular activities that violate their say that if i'm going to participate in this or activity that i will abide by a higher code of conduct that was violated here so the question is what and what would what can the administrators do when somebody correct well then it would not be protected by the st amendment if it was outside of that protection but be only agreed to the cheerleading rules because she wanted to be a cheerleader she could not have become a cheerleader without signing those papers and that's by definition coercive she's not able to put forward i agree and there's some issues about what is consent and what is a course of an extracurricular but i i at least would like to think about this case by starting with what you started about well this is off campus activities all right so let's let's ask what's off campus and what's not in the cyber age what if she had posted the same image in the same order to a facebook group for all members of on the internet but it's a school part of the internet i think there can be a distinction between sending something directly to the coaches versus sending something that is accessible to other students i mean in j s the court also noted that it's no surprise that j s in that case had directed her her speech toward other students at the school didn't know who her friends were right with and with a student that's through their friends are people who are going to that school with them you can't automatically assume that they're purposely directing their speech at the school district just because they include there but what if the school sets up a computing resource either its own computers or they organize an official page or official list serv just because it's on saturday doesn't mean we can't understand that to be part of the  if it is the school district property the school district has set it up that i think that that is more akin to on campus speech and saying on campus i mean it's on physically on the school's campus but it's using school resources to frederick you have the cases where the parade is just off campus but it's treated as on campus because it's a co curricular it's adjacent to it so it's not physically on the campus is not always required but let's let's take it up a notch what if  is clearly off campus speech but it's in effect what we call to their cyber bully so i think that the the court has to look to you know obviously been left undecided in the circuit as to whether schools can  students at all for out of school speech even under the tinker standard if the if the speech is is so harassing that it the school has a compelling interest and punishing the student as narrowly tailored and i would take it out of well b l didn't mention annoyer in a school district she wasn't wearing any clothes and identified her as a mom or a school district student she didn't mention any particular students names should even mention cheerleading team she just mentioned the word cheer among with the word school bar everything in a profanity so it to i think it would be a big leap to imagine that a student would feel bullied as a result of that snap that bell sent out that was available for twenty four hours to a limited number of people if it does not point up there the reason why in this age it's appropriate reasonable for school districts to have codes of conduct  from the school it's perspective there clearly are going for a standard less than temper to apply to out of school speech and the supreme court has made it clear made it clear fifty years ago that at the very least schools have to me tinker to punish school students  substantial material destruction but that the idea that schools can reach outside of their scope of authority and punish students for off campus speech i think gives them dangerously broad discretion over student speech outside of school and it's and especially you know and on one hand you have the school district saying well in the internet age we need to this this this authority but on the other hand you know the  that the internet is treated the same as you know the most protected forms of speech and to limit students rights on the internet simply because of its broader reach would contravene the principles that the supreme court discuss versus reno about how important it is that the fact that you can reach so many more people is not a reason to vote to prohibit a speech i'd like to go back to your idea that we were in the inability of the school to impose any kinds of gone to give even greater protections than the then adult speech outside of school you seem to be saying that you that one can't as a student waive your rights to speak to  speech or certain kinds of speech as a condition of engaging in certain voluntary activities at school why why would students be unable to do that when adults outside of school are able to do that require government employees to waive all of their person and that right to the condition of government employment there's a balance there's a public concern and then a balancing test that's applied that's not the test but the by the student speech the supreme court has has given us the tests for student speech but i think the analogous is appropriate that you can if government employees who have a choice about where they're going to work cannot wave all of their personal rights as a result of accepting cannot be required to waive their personal rights as a result of accepting government employment but why would we do the same thing for  no precedent for that would restrict is not not not suggested it was all of their rights it's imposing certain parameters for participation in activities that they that they characterize as a privilege not a right to begin with activity may affect things at school make life more difficult maybe lower morale a host of things at some point when can the school step in to regulate conduct that's off campus but a school speech so you know we would argue that that will that can only happen if the government mean if strict scrutiny but that's not this case we don't need to address that issue in this case right well let's take an example from utah cheerleaders they make the cheerleading squad keep this confidential for twenty four hour they sign agreement and of course these girls go on social media and say hey we rock you lose you didn't make squat you can impose to can we still uphold that kind of restriction no i mean you have to it would have to be strict scrutiny and i don't think in this case you can be structured now you know when one analogy i that i think might be appropriate for the johnson cheerleading case is for example like a football player who divulge is like the place that they're going to use the next week's game like that i think that is something that the school district could say you can't divulge information that would be detrimental to the team that is confidential and it's also similar to government employees who have to get preclearance before they can can write a book that would just watching other members of the team pull i'm sorry i got a little bitty criticizing other members of the team yeah i think that standard is not high that is too low to meet st amendment case i mean there's no precedent for allowing the government to punish someone simply because they some some breathing room for students to engage in speech i think one of the problems is what you identified judge beavis which is that putting these rules in place it's very difficult to draw those lines and it's going to end up chilling socially valuable speech of students outside of school let's say someone post something that says hey we ought to be able to drink at age sixty and post a picture of himself holding a beer high right well there's now you see part of that in the bong hits for jesus case suggests that that portion of it's protected but the minor showing himself with alcohol which is a violation of law in every state ok what is a school do britons to undermine the school's ability to keep a sober environment on campus we know binge drinking is a problem in a lot of high schools so i think that's where the school districts point about about schools being able to regulate student athletes speech more than they can regulate our students and monitor their speech more than they can regulate just the normal student students who are involved in those activities comes into play because the schools about what about the student who pub rags about his gun collection of facebook you mentions columbine is in the hook but it doesn't quite make a true threat you think that student that this school lacks the ability to punish  speech and is that only under pennsylvania law could could have delaware or new jersey school punish that student per activity is going to scare some people creep some people out but it's not appropriate and that's absolutely a serious concern and i think at the very least that would likely me tender and it could very well need strict scrutiny if you're looking at the effect of that speech in this day and age and other students at the school because parents are going to keep their their children home and the school should have an interest in making sure that kids go to school which is it might need to incur is to acknowledge that even if that speech is off campus there i think it would apply right what we're saying is that at the very least tinker very least the school district has to  it we think that it you know a rule saying that doesn't apply to our school speech is more appropriate under the st member and i think that strict scrutiny could actually come in to resolve the concerns that a lot of school districts have especially when you're talking about violent speech but in this case the court does not need to restock question because this speech did not even meet anger here that we need to take out of the nature of the extracurricular activity in considering whether the case moves closer to the phrase your morse  kind of concerns that is with some activities say student president folks might look at that person as actually representative of the school  things that are said even off campus as representing the school in the school student body if there is that that that sort of identification of the speaker with the school is regulation then more permissible because of some appearance of endorsement for example i think that when the when the student is acting in their role as a student government leader then the school has authority under ha there's any evidence going to that perception that student athletes are considered to be school representative i mean students are the customers of a school they are not the schools representatives and i don't think it's reasonable for a person to view a student athlete as a represent ve school when they're on the weekend out of school on their own time at the cocoa nut that is not a reasonable thing for for a reasonable inference for people to draw and it would also have really serious consequences on students right to engage in socially valuable speech outside of school look at students who want to report hazing in the locker room to report discrimination or even sexual harassment by coach as you look at the negative information rule in this case and that could be used to prohibit you know a member of the debate team from criticizing the lack of diversity on the team or the student newspaper editor from criticizing a censored article on facebook there are so many different ramifications that could occur that would be very dangerous in terms of students  eleven of the issues that the judges asked it was the distinction between in school and out of school in this day and age and the court is well aware that a lot of courts have struggled with that is reflected in their decisions but there's an interesting word or phrase that was used by the supreme court in frederick versus maurice where d the court was talking about the conduct in the fraiser case and the court basically said today in school frazier's conduct was not protected by the school by the st amendment but when saying if he made th statement at side they did say out of school they said outside the quote school context and that quote and i suggest that the supreme court very carefully chose that word perhaps to avoid the problems of what's in school and what's out of school and this post which is definitely related to the school context it was sent to other school students including members of the cheerleading squad and it referred soley in directly to school another brief comment it is obviously cowan versus california a very important case and the comments about a tinker's armband is allowed in school but not cohen's jacket one of the facts in that cage that the supreme court dealt with as to why it was protected when he was wearing it that jacket in the court house is they said it did not include any personal insult and of quote in this case it's very reasonable d to  my final comment is this with respect to the application of change or the thing because it's me to scratch my head in tinker is if the student did exactly what the student did in this case but her teammates reacted badly if her teammates violated the rule of good sportsmanship and if her teammates walked out of it a practice or walked out of a performance in a protest of what she amendment it's effect on showing speech and and i take it you don't dispute the notion that being kicked off an extracurricular activity would have the effect of chilling teaches students  we pointed out in our brief the three part in our series on constitutional retaliation we're only addressing the st part not part two in part three if we lose the st part we agree that the part t of today's or argument thank you both for being here thank you very well presented arguments and will take the matter under advisement