[music] 0:00:08.6 Jackie Strohm: Welcome to PA Centered, a podcast designed to help listeners be a part of the solution to end sexual harassment, abuse, and assault. Each episode, we will take on a topic or current event to help spark conversation and break down barriers to building communities free from sexual violence. [music] 0:00:31.7 JS: Hi, I'm Jackie Strohm, the Prevention and Resource Coordinator at the Pennsylvania Coalition Against Rape. And for the first time, I have a co-host. 0:00:40.3 Kelsey Myers: Hi, I'm Kelsey Myers, the Communications and Public Policy Specialist at PCAR. 0:00:46.4 JS: We are joined by attorneys Konrad Jarzyna and Lisa Matukaitis with PCAR Sexual Violence Legal Assistance Program or SVLAP to learn more about a recent Supreme Court case that could mean a lot to students who are experiencing sexual harassment or discrimination. So welcome, Konrad and Lisa. 0:01:08.0 Konrad Jarzyna: Good morning everyone. Thank you for having us. 0:01:10.9 Lisa Matukaitis: Good morning, Kelsey and Jackie, thank you. 0:01:13.4 JS: So the team of attorneys at PCAR's SVLAP represent survivors of sexual harassment, abuse, and assault for free, throughout Pennsylvania. The services are safe, trauma-informed and confidential, and you can learn more about SVLAP and how to get in contact with them by checking out the episode description. 0:01:34.0 KM: We're so happy to have Konrad and Lisa here to get some legal opinions on a recent Supreme Court decision. Please note that due to the topic of this case, we may be using some vulgar language. We'll also be discussing sexual violence. 0:01:53.7 JS: And so we anticipate that schools are going to be re-opening full-time for the first time in over a year since COVID and with the school year approaching, we thought it might be timely to talk about kids' speech rights. So I'm gonna turn it over to Lisa to give us some background on the case. 0:02:11.7 LM: So today, we're gonna highlight a case that involves a cheerleader, a Snapchat, and a few curse words. I think my mom is listening, so I don't know if I'm allowed to say them. And the case made it all the way up to the Supreme Court of the United States right here... From right here in our own backyard, a town called Mahanoy City. It's a town in the coal region of Pennsylvania, about an hour and a half north of Harrisburg, and this case was decided in the cheerleader's favor. It's very rare to get a solid majority decision from the Supreme Court, which is usually divided, but this case was decided eight to one, and that means that we have a little bit more clarity for our kids and our schools about what they can and can't say outside of school. To provide a little background, the Supreme Court recently decided this case for a student in a school district. 0:03:13.2 LM: The student that brought the case, her name was Brandy Livi. She was represented by the ACLU of Pennsylvania. She was a student at Mahanoy Area High School, it's a public school, like I said, in a small town, a small rural town in Pennsylvania, and there's about 4000 people in that town. When Brandy was 14, she didn't make the varsity cheer squad and she was upset and disappointed and she did what a lot of kids would do, she went to social media and expressed her frustration. She went to the local convenience store and posted a simple message to her friends over Snapchat that said, "Fuck school. Fuck cheer. Fuck softball. Fuck everything." She took a selfie and gave the finger and figured that was the end of it. 0:04:05.6 LM: But after finding out about the post, her school suspended her from the junior varsity cheerleading team where she had earned a spot and they decided her for a breach of the code of conduct she'd been made to sign as part of the cheerleading team. Her parents, kudos to them, they contacted the ACLU. From what I understand the ACLU gets about 5000 requests for help every year, and the ACLU stepped in and helped her. And they wrote a letter to the school saying that you can't discipline the student for exercising her rights, her free speech rights, her First Amendment rights. She said it outside of school, and it was off school grounds, off school time. There were no threats made to the school, it didn't disrupt the school's functioning, and you need to not issue her any discipline. 0:05:05.1 LM: The school didn't agree and she had to go all the way through the court system. It started in the federal court in the Middle District of Pennsylvania. She got an injunction, she got a temporary injunction then a permanent injunction. The school kept appealing it and went to the Third Circuit, the Third Circuit found in her favor, the school appealed that to the Supreme Court and the Supreme Court ultimately found in her favor. And so this is a pretty important case. I think Konrad's gonna talk more. 0:05:40.1 KJ: Yeah, another significance of this case is that it's been so long, several decades since the Supreme Court dealt with a student speech issue. The last major Supreme Court case that took up the issue of student speech rights was during the Vietnam War... I'm sorry, the Vietnam War in the 1960s when a couple of students wore black armbands to school in protest of the war. At that time, the Supreme Court decided that the school cannot discipline students for their speech unless it poses substantial, "Disruption to the learning environment," and that case was titled Tinker versus Des Moines and the test applied in that case has been called Tinker Test since that time. So we know that schools cannot punish the student for off-campus speech unless it materially disrupts classwork or involves substantial disorder or invasion of the rights of others. 0:06:45.7 LM: So, since the Tinker case came out in the 1960s, there has been a couple of other Supreme Court decisions, but none since we've had the internet and social media. Now we're in an age where most kids are carrying their iPhones to school, they're using iPads, they're using computers during school, and with COVID last year, the schools began distributing laptops to kids to learn remotely by Zoom and other platforms. So, in this situation, it's really, really important to point out that the cheerleader speech didn't happen at school or during school hours or during a school-sponsored activity, those can be activities like riding the bus to a football game or taking the bus to and from school, field trips can be school-sponsored activities. This didn't happen in any of those situations, it didn't happen on a school issued device, and it wasn't using the school's internet, rather this happened on a Snapchat post that the student made at a coffee shop or a gas station on a Saturday after she didn't make the varsity cheerleading team. 0:08:00.1 JS: So were the schools arguing that they wanted to monitor kids social media or off-campus speech or cyber bullying or any kind of threats? Did they actually want to have the burden of checking the kids social media accounts? 0:08:15.1 KJ: Yes, in this case, the school... The reason why the school kept appealing, it's because the school wanted to expand its ability to at least control or be able to decide when they can get involved or impose discipline, they didn't say that they wanted necessarily be in charge of monitoring the social media accounts, but I think the way I take it at least, in more arbitrary fashion, they wanted to basically pick and choose when they can, cannot get involved, and the Supreme Court recognized that the school-age kids need to blow off some steam or express their opinion whenever they want, especially outside of school, and the kids cannot be silenced. In fact, the Supreme Court stated that the schools are, and I quote "Nurseries for our democracy," so the free speech is not something just for the adults, it's also for kids in our schools. The court also recognized that the schools cannot be in charge of students 24/7, just doesn't make sense, it just gets us into more of a big brand or territory, and most of all it's not the job of the schools to be monitoring kids' social media accounts like Facebook, Instagram, Snapchat and TikTok. 0:09:36.6 KJ: It's difficult enough for parents to do it, let alone school districts. But it is the parents' responsibility to see what the kids are up to, what they say on social media, what kind of activities they engage in, and the school shouldn't be really in charge of that or be given some parental rights in terms of raising children. This decision actually should be... If I'm a school administrator, I'll be relieved because then I'm not in charge and it's not on my shoulders to make sure that what's said off-campus is my responsibility, that's why I said earlier, it seemed like more of an arbitrary thing but if we don't like something, we're just going to address it and then we decide what we will address, what we will not address. But in essence, what happens off-campus stays off-campus, that is unless the off-campus speech is bullying, threatening or it constitutes hate speech, that kind of speech really isn't protected under the First Amendment and it wasn't prior to this decision, so disruptive to the school environment would be the key. So, if there is any off-campus speech or I mean, anything said off-campus that spills into the school environment and is disruptive, then the school can step in and get involved. 0:11:09.5 LM: Yeah, and I think it was so important in this decision that the court recognized that schools really do have the responsibility to protect kids' First Amendment rights. Like you said, Konrad, that the court wrote that America's public schools are the nurseries of democracy, that is so important. Kids are developing, they're developing their thoughts and their ideas and it's very important for the schools to protect even unpopular expression, especially when that expression takes place off of campus. We are raising... The schools are educating the next generation of people in our democracy and it's very, very important that their speech is protected. 0:12:00.3 KJ: Yes, and we must keep in mind that this decision does not mean that the same speech would be protected if it happened on campus, or if the off-campus speech that is deemed racist, bullying, again threatening or otherwise disruptive to learning. On campus speech can be limited and the schools have ability to step in and control it or, also you should know that on campus these days doesn't necessarily mean on the piece of real estate where the school is located but also on the school's sponsored or supported platforms where the students can post or chat, etcetera, so that would also be considered on campus and that most schools limit students on attempt at speech and they ban language that's, again not to repeat myself, but it's lewd or racist, vulgar, disruptive, it's bullying in nature or threatening directly or indirectly. 0:13:07.3 LM: And so just to jump in there, most schools, Konrad, are gonna have policies, right? Whenever I'm looking at a school issue or a school speech issue or a harassment issue, the first thing that I'm gonna do is go to the school's website and look for their school board policies or the school policies or the school handbook, and most schools in Pennsylvania that I've seen so far, do have a website, they have their policies posted, they might not be that easy to find, but usually, they're available to public. And the policies that you're gonna be looking for to see, if you do have an issue with harassment or a speech issue or a discipline issue, you're gonna look for a school's Title IX policy, their anti-discrimination policy, their unlawful harassment policy, things like that. And you really wanna see in those policies what is prohibited, what is protected. If you're a victim of a harassing situation, to whom do you make the report and how do you make that report? So, I think it's real important to always be familiar with your own school's policies and procedures, just like if you're in the workplace. 0:14:23.6 KM: So, if a student... Since lots of kinds of speech are in fact able to be regulated by the school, especially ones that are threatening or involve some level of harassment, what can we suggest that students who are experiencing cyber bullying do or students that see a credible threat to their school posted online? 0:14:45.3 JS: So one resource that we definitely wanna share, if you're in Pennsylvania and listening, there is something called Safe2Say Something and it's an app, they also have a website where you can make an anonymous tip or submit an anonymous tip rather, or a phone number that you can call. And so if you are worried about safety in any way or a threat to your school, you can make this report so that somebody can actually investigate it and I believe you can do the same thing if there is instances of cyber bullying going on, but some other options are to really talk to a trusted adult in your life about what's going on. We'll post some resources about how you can help a friend if this is happening to them but then also wanting to remind folks that we have experts all over Pennsylvania who can come in to schools, parenting groups, really anywhere and talk with kids about healthy relationships, healthy communication, and how to get help if they need it. 0:15:56.0 KM: So, has this case left us with... Lisa and Konrad, with some questions that still don't have really specific answers related to how schools ought to behave in these situations, how students and their parents ought to behave, how to address if off-campus speech crosses over the line? Were there any clear answers on that or is this something that the court still has to decide with future cases? 0:16:24.8 KJ: I think what this case accomplished was just provide clarity or distinction between off and on-campus speech and basically provided schools with some guidance as to when they can and cannot get involved. So I think that's been very helpful, otherwise, there are other processes, other laws that also protect students and teachers as well, that have been in place and the schools... First thing that comes to mind is Title IX. Traditionally, people think that that only applies to athletes but it applies to basically all the students, employees of schools and each school does or should have a Title IX policy and procedures for addressing certain situations, not all the situations but certain situations, if someone is being targeted individually, as a group and... In those cases, can report it to Title IX coordinator, and before you do that, it's probably prudent to maybe seek legal advice on how to approach it, if you have questions or if you feel uncomfortable. So the most part, the schools, they know how to deal with this situation. They should know how to deal with this situation. Now they know when they really should back off and stay away. 0:18:06.0 LM: Yeah and there are a lot of situations that come up that could implicate a student's First Amendment rights or their equal protection rights and also Title IX, and I was just reading about something that happened in Kansas, it didn't happen in Pennsylvania, but over the past year, this involved a 14-year-old student who was riding a school bus and like a lot of school buses, it was like a chaotic environment, the kids were screaming. It was noisy, the kids were cursing or using vulgar language and the bus driver didn't do anything about that but when the 14-year-old female student came up to her and said I'm a lesbian, the school bus driver told her to watch her mouth, that I've got little kids up here and do you think these little kindergarteners need to know what that word means? The school bus driver went on to write her up for disobeying the driver, unacceptable language, rude, discourteous, noisy or annoying. The student told she was gonna be suspended for several days from riding the bus and she challenged that decision. The video from the bus showed that the female student wasn't being disruptive, she was being cooperative, unlike some of the other kids on the bus who weren't written up. 0:19:33.0 LM: She talked to a teacher about it and the teacher... She asked, "Hey, what if I would have said, I'm straight, would we be here?" And the teacher said, "No, because it's not inappropriate." So she went on to file a Title IX complaint saying that she was denied educational opportunities because of her sex, a violation of Title IX was found and it was affirmed on appeal, but there's still the separate issues of whether that action violated her First Amendment rights or equal protection rights under the 14th Amendment. So it's important to note that all these cases that we're talking about are happening in public schools, and the constitution... That the constitutional amendments that we're talking about apply to government action. So it may be different if it was a fully private school, but kids in school have rights, and it's important that they understand their rights and that the schools have policies, and that there's a place for them to be able to make the complaint if they feel like they're being unfairly disciplined or targeted because of their protected class or because of their First Amendment rights. 0:20:52.5 KM: In a lot of the cases that we talked about, including the one that you just mentioned, Lisa, we're talking about minors who are in high school, right, or students who are part of the public school system, but before they turn 18, we know through our work as the Pennsylvania Coalition Against Rape that a lot of the students we work with who might experience harassing speech or other types of speech-related problems are actually in higher education in college. Some of them are still teenagers, but most of them are over the age of 18, they're not minors. So they're legal adults. If a student goes to a public institution of higher education, like a community college or a state school, how do these decisions affect that college or university's ability to regulate student speech? Is it different because the students are now legal adults or is it more similar? How is that Supreme Court case affecting colleges? 0:22:00.3 LM: Yeah, that's a great question, Kelsey. And the answer is, there is really no difference whether it's K-12s environment or undergraduate school, graduate school, this case or this particular case applies in the same way. There is a distinction between on and off-campus speech, whether the school can, cannot get involved. I don't think there is really any difference between types of schools or age of the students when it comes to how this case would be applied. So if you're in college and let's say someone... Let's use the exact same example, you're frustrated, you didn't make the cheerleading team in college and you make the same comment and the school wants to discipline you, I don't see the Supreme Court deciding that case any different than they did here in the high school setting. 0:23:02.9 KM: So speaking of speech in higher education or college environments, I'm a little curious about... We've recently, over the last decade or so, definitely had some cases of speech on college campuses that were quite disruptive or harassing or threatening, I can think specifically about a chant that went around the country for quite a while, and this is fairly vulgar, but of some young students marching around the campus stating, "No means yes, yes means anal", which obviously involved sexual violence and by some could be seen as threatening that violence on students. Just recently here in Pennsylvania, there was another case where some students gathered around a space that was designated to be for LGBTQ students and that they had claimed, and these students were homophobically stating that actually the space belonged to them, and were extremely unwelcoming and harassing toward the LGBTQ students. Can you talk about how this case might guide decisions made around those types of students and those types of cases? 0:24:19.5 LM: Yes. So again, I would encourage people that if they are targeted by that speech, even on a college campus, to look for their school's Title IX director, Title IX department, and Title IX policies, that may be covered under Title IX, it may also be covered under other policies like sex discrimination. And so it's worth... Any time you're faced with a situation like that, it's worth consulting with your Title IX department, and they can usually give you some kind of policy or a brochure and your reporting options, so that's important. And then also, people in Pennsylvania can give us a call. Konrad and I are both attorneys with the SVLAP, we're free and confidential attorneys, if you have any questions, we're here to listen and to give you advice, if you're a victim of sexual assault, harassment or abuse. 0:25:27.9 KM: Konrad, what should students do if they have a specific question about a student speech as it relates to them and their particular case? 0:25:39.8 KJ: They have a... That's a question involving a student's speech in the context of what their rights are, how they can enforce it or they're being targeted by someone else's speech. My advice would be just to consult with an attorney. A lot of these... Every situation is different, very fact-specific, and it's just better to get legal advice as soon as you can, mainly because sometimes you're dealing with statute limitations that may be too late to enforce those rights, when you're dealing with particular policies, there are timelines that you need to follow and procedures that you need to follow. Unless you're pretty familiar with that and savvy, you want an attorney to review the policy and apply the facts of your situation to the policy or to the applicable law and just so you know how to proceed. If you contact us for advice it doesn't mean that you have to pursue your case that you're then bound to do it. 0:26:52.7 KJ: Sometimes people will get advice from us, and in light of that advice they decide not to pursue their case, but at least, they feel comfortable that they know where they stand and what they can, cannot do. And I'm also not saying that you have to contact us, there are plenty of attorneys and they're competent and experienced, and the bottom line is speak to an attorney or someone who at least is familiar with these policies or laws and can guide you through the process. 0:27:28.0 KM: Well, Lisa and Konrad, thank you so much for joining us to talk about constitutional law and how it affects Pennsylvania students and survivors. 0:27:38.9 KJ: Thank you so much for having us and congratulations on your first podcast, Kelsey. It's been a pleasure. 0:27:44.1 KM: Thank you. 0:27:46.3 LM: Thank you. 0:27:48.5 JS: Alright, that's all the time we have today, but thank you all so much for listening to this episode of PA Centered. You can learn more about this Supreme Court decision by visiting the links in the episode description, and you can contact the SVLAP at 717-901-6784. [music] 0:28:16.4 JS: If you or a loved one needs help, a local sexual assault center is available 24/7, call 1888-772-7227 for more information, or find your local center online at pcar.org. Together, we can end sexual violence. Any views or opinions expressed on PA Centered by staff or their guests are solely their own and do not necessarily reflect the opinions of PCAR or PCAR's funders.