By: Kara N. Luechtefeld
Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038 (2021).
I. INTRODUCTION
Today, approximately ninety-five percent of teens have access to smartphones, and around forty-five percent of teens claim they are online consistently.1 Social media has fundamentally changed how, when, and where teens communicate. This has changed who can see and monitor those communications, resulting in implications for the First Amendment student speech doctrine. With the rise of social media, there is now a way for the school to see what students are saying off-campus. Snapchat, a social media application, launched in 2011.2 In a recent Supreme Court decision, Mahanoy Area School District v. B. L. by and through Levy, the Court evaluated whether the First Amendment protected a student’s use of Snapchat off-campus.3
II. FACTS AND HOLDING
B.L. was a rising freshman at the Mahanoy Area High School when she tried out for the cheerleading team and made the junior varsity team.4 During B.L.’s sophomore year, the coaches again placed her on the junior varsity team but also placed a freshman on the varsity team.5
B.L. was extremely frustrated, and while she was at a local convenience store, she took a photo of herself and her friend with their middle fingers raised and posted it on her Snapchat story.6 She added the caption “Fuck school fuck softball fuck cheer fuck everything.”7 She then added another blank Snapchat that said, “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?”8
One Snapchat friend, a cheerleader at Mahanoy Area, took pictures of the posts and shared them with other cheerleaders and one of the cheerleading coaches.9 Students questioned the posts during an Algebra class taught by one of the coaches, which took somewhere between five to ten minutes out of class each day for a few days.10 The coaches decided the posts violated the team and school rules.11 In response, the coaches removed B.L. from the junior varsity cheerleading team.12 B.L. and her parents appealed this decision to school authorities.13 The school authorities decided B.L. could try out for the team the following year, but they supported the coaches’ decision for the current year.14
B.L. sued the school district in the United States District Court for the Middle District of Pennsylvania and asserted three claims under 42 U.S.C. § 1983.15 This note will focus on B.L.’s claim that her suspension from the team violated the First Amendment.16
The district court granted summary judgment in favor of B.L., holding in relevant part that her suspension from the team violated the First Amendment.17 The court found that B.L.’s Snapchat post did not cause any actual or foreseeable disruption to the school environment.18 Therefore, the post was not subject to discipline under Tinker v. Des Moines.19 The school district appealed this decision, and the Third Circuit affirmed the judgment.20 The Third Circuit noted that Tinker standards did not apply because schools have no special license to regulate student speech occurring off-campus.21
The school district filed a petition for certiorari with the Supreme Court to have the Court decide whether the standard articulated in Tinker applied to off-campus student speech.22 The Supreme Court affirmed the Third Circuit’s judgment and held B.L. spoke in circumstances when the school did not stand in loco parentis, and the disturbance caused by B.L. did not arise to the Tinker standard.23
III. LEGAL BACKGROUND
A. Supreme Court Precedent
The Supreme Court’s landmark case concerning First Amendment protections for student speech has aided courts in deciding if a student’s speech is protected.24 Tinker v. Des Moines was a First Amendment suit in which students’ fathers alleged that a school district violated their sons’ First Amendment rights in suspending them after they wore black armbands to school to protest the Vietnam War.25 The students wore the armbands after the principals of the schools adopted a policy prohibiting the armbands.26 Principals asked the students to remove the armbands, and the students refused.27 The administrators then suspended the students until they returned to school without the armbands.28
First, the Court noted that while the students’ conduct was not pure speech, conduct is closely akin to pure speech.29 Therefore, the Court analyzed it in the same manner.30 The Court reasoned that though students do not shed their constitutional rights to freedom of speech or expression “at the schoolhouse gates,” those rights are more limited than the First Amendment rights of adults.31 The Court explained the speech or expression of the student must “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” in order for a school to justify prohibiting it.32 This became known as the “substantial disruption test.”33 In Tinker, the armbands caused discussion outside of the classroom but did not interfere with the school’s operation.34 Consequently, the armbands did not cause a substantial disruption to the learning environment.35
The Court further refined the Tinker standard in three other cases spread over roughly four decades. In Bethel School District Number 403 v. Fraser, the Court held schools may regulate student speech when it is vulgar or lewd because the First Amendment recognizes an interest in protecting minors from such language.36 In Hazelwood School District Number 403 v. Kuhlmeier, the Court held schools may regulate speech engaged in during school-sponsored activities.37 The Court in Morse v. Frederick held schools may regulate student speech when it contributes to promotion of illegal drugs.38
B. Off-Campus Speech – Circuit Court Approaches
In the absence of any precedent involving off-campus speech, circuit courts devised different tests to evaluate First Amendment claims regarding regulation of off-campus speech.
The Second, Fourth, Eighth, and Ninth Circuits held that Tinker standards apply to certain off-campus speech.39 The Third and Fifth Circuits, however, have held that Tinker does not apply to off-campus speech at all.40 The Third Circuit relied on Chief Justice Roberts’s statement in Morse that “[had] Fraser delivered the same speech in a public forum outside the school context, it would have been protected.”41 The Third Circuit reasoned that the speech must occur in an environment owned, controlled, or sponsored by the school in order to apply to student speech.42
IV. INSTANT DECISION
A. Justice Breyer’s Majority Opinion
In Mahanoy, Justice Breyer declined to articulate a broad, First Amendment rule that lower courts could use to define off-campus speech.43 Instead, he stated three features of off-campus speech should demonstrate that, though schools have some rights to regulate student speech, it is diminished.44 These features were: (1) schools will rarely stand in loco parentis; (2) if schools regulated both off-campus and on-campus speech, then they would regulate student speech for the full 24-hour day; and (3) schools have an interest in protecting students’ unpopular expressions.45
Justice Breyer explained that the doctrine of in loco parentis allows school administrators to stand in the place of students’ parents when the parents are unable to protect, guide, and discipline them.46 Justice Breyer concluded that “a school, in relation to off-campus speech, will rarely stand in loco parentis.”47 Second, Justice Breyer pointed out that courts must be skeptical of schools trying to regulate off-campus speech because if schools are able to regulate off-campus speech, students’ speech may be severely limited.48 Third, Justice Breyer reasoned that America’s public schools aid our representative democracy by facilitating a wealth of opinions.49 Therefore, schools have an interest in defending students’ unpopular opinions.50
Analyzing these features, Justice Breyer first held that the school district did not stand in loco parentis concerning B.L.’s speech.51 Further, the school did not show this created a substantial disruption under Tinker because the only “disruption” took five to ten minutes out of an Algebra class for a few days.52 Finally, the school did not show B.L.’s posts created a substantial disruption in the team’s morale.53 Justice Breyer noted the Supreme Court did not agree with the Third Circuit’s panel majority but agreed the school did violate B.L.’s First Amendment rights and affirmed the judgment.54
B. Justice Alito’s Concurrence
Justice Alito further explained the majority’s opinion and gave a few examples of times when schools can and cannot regulate off-campus student speech.55 Justice Alito discussed that parents relinquish some of their authority to schools in order for schools to carry out their state-mandated educational mission.56 This authority gives schools the right to regulate some off-campus speech.57 However, Justice Alito noted this is not a complete transfer of power and that schools may not regulate every aspect of students’ speech.58
C. Justice Thomas’s Dissent
Justice Thomas dissented arguing under Morse that schools could still discipline students for off-campus speech that had the ability to harm the school environment.59 Justice Thomas also noted that the Court failed to follow the solid foundation of Tinker and utilized a common-law approach to their decision.60 Justice Thomas said this common-law approach is evident because the Court stated one rule: “Schools can regulate speech less often when that speech occurs off campus.”61 In the present case, B.L. made the decision to participate in an extracurricular activity, and Justice Thomas claimed students who engage in such programs have a greater potential, through their participation, to harm the programs.62 Justice Thomas also noted even though B.L.’s speech originated off-campus, it could easily be transmitted to campus as people could access the posts on campus.63
V. COMMENT
In Mahanoy, the Court issued a narrow holding and fell short of giving meaningful guidance. Because this case was a matter of first impression, the Supreme Court had the opportunity to create a broad rule to assist in future litigation, but instead, it chose to create three features to aid other courts in their decision-making.64 This Part discusses the possible issues the Court’s narrow holding could have on future litigation of off-campus speech.
A. The Narrow Decision and Guidance for Courts
The majority opinion correctly ruled that the Mahanoy Area School District violated B.L.’s First Amendment rights.65 But the Court’s holding is too narrow and does not provide enough guidance for lower courts and schools to discern when off-campus speech can be regulated. Justice Breyer’s three features that distinguish schools’ abilities to regulate off-campus speech from on-campus speech, however, is a start.66 Although, as Justice Thomas noted, lower courts will have trouble translating those features into a discernable test.67 Even though this case resulted in a victory for the protection of student speech, it did not overturn any precedent or delineate any new protections of speech. Thus, the Court did not answer many tough questions that schools and lower courts will still encounter.68 The murkiness surrounding the line between regulating off-campus speech will only get muddier in the future due to the constant presence of social media in young students’ lives.69
The Supreme Court’s decision to not set forth a broad rule and to instead use this case as an example of off-campus student speech that the First Amendment does protect has a potentially negative effect on future cases. Recently, a Missouri district court ruled in Cheadle on behalf of N.C. v. North Platte R-1 School District that a school can regulate students’ illegal conduct because it is not pure speech.70 In this case, a middle school student filmed a video of herself drinking alcohol and shared it in a Snapchat group.71 The student was diagnosed with acute alcohol poisoning, and students and parents reported the incident to school administrators.72 School administrators disciplined the student for violating the Alcohol and Drug Rule of the student handbook.73 The court explicitly mentioned the Supreme Court in Mahanoy did “not set forth a broad, highly general First Amendment rule” and differentiated the case from Mahanoy by saying here the school was regulating the student’s conduct, not her pure speech.74
However, as noted in Tinker, conduct is closely akin to pure speech and may be analyzed in the same way.75 But, Tinker never fully determined that conduct and pure speech must be analyzed in the same manner. Rather, it recognized that Tinker’s specific conduct was similar to pure speech.76 This left the question of what constitutes student speech unanswered. In Mahanoy, the Supreme Court never discussed whether conduct would be included in the three-part analysis that the Majority explained.77 If the Supreme Court in Mahanoy gave more guidance concerning what schools may and may not regulate, the decision in Cheadle may have looked very different.
B. Guidance for Schools
Along with the Supreme Court’s lack of guidance for courts, there was also a lack of guidance for schools in terms of when schools may regulate student speech. There is now a gray area in terms of what schools can and cannot regulate because the ruling in Mahanoy made it clear that schools cannot regulate all off-campus speech, but schools still have an interest in regulating speech necessary to establish a positive learning environment for students.78 School administrators are now looking at changing policies in order to comply with the recent ruling.79 Changing these policies might prove difficult for administrators because the lack of guidance does not set a clear boundary for what speech schools can regulate, leaving schools up to their own prerogatives to set these boundaries.80
C. Waste of Judicial Resources
The Supreme Court usually does not take many First Amendment cases, forcing students and schools to litigate through the federal judicial system, which is a waste of judicial resources. The Supreme Court receives more than 7,000 writs of certiorari each year but usually only accepts around 100-150 writs.81 During the 2019-2020 term, the Supreme Court granted certiorari for 74 cases.82 In the context of student speech First Amendment cases, it appears as though the Court does not often grant writs of certiorari. In 2011 alone, the Court denied certiorari in four student speech cases.83 In 2019 and 2021, the Court denied certiorari in at least one case per year.84 Further, there was a gap of 14 to 19 years in between each landmark student speech decision before the Court heard another.85 These facts show the odds of the Court creating a more general rule addressing this issue in the future are relatively slim.
Additionally, forcing cases to come before the Supreme Court in order to articulate a more general rule over time would be a judicial waste of resources. Forcing students, their families, and school districts to go all the way up to the Supreme Court in order for the Court to evaluate each case and provide further guidance would require parties to go through the federal judicial system.86 Through this, lower courts will continue to try and piece together when schools can and cannot regulate off-campus speech. If the Supreme Court were to articulate a general rule for lower courts to use, this could potentially help lower the number of cases in the federal judicial system.
It is also extremely expensive to bring a case to the Supreme Court to evaluate if a school violated a student’s First Amendment rights. These costs are extremely burdensome to the parties involved, and a more general rule could help parties avoid these costs. Filing fees and attorneys’ fees add up quickly.87 If one of the parties were to appeal, the Court of Appeals filing fee is $500.88 Then, to file a writ of certiorari, which does not guarantee that the Supreme Court will hear the case, the docket fee is $300.89 If each student or school must take their case to the Supreme Court in order to further expand the rule created in Mahanoy, parties will consistently be paying thousands or even millions of dollars, which could have been saved if the Supreme Court originally created a more general rule for lower courts to apply.
VI. CONCLUSION
In Mahanoy Area School District v. B. L. by and through Levy, the Supreme Court explained its rationale for ruling in favor of B.L. thoroughly and precisely. But, though the decision in this case provided an example of when schools may not regulate off-campus speech, it was a narrow decision and did not clearly articulate the boundaries of when schools are allowed to regulate off-campus speech.90
FOOTNOTES
[1] Monica Anderson and JingJing Jiang, Teens, Social Media, and Technology 2018, Pew Rsch. Centr. (May 32, 2018), https://www.pewresearch.org/internet/2018/05/31/teens-social-media-technology-2018/.
[2] Biz Carson, The Rise of Snapchat from a Sexting App by Stanford Frat Bros to a $3 Billion IPO, Business Insider (Feb. 5, 2017), https://www.businessinsider.com/the-rise-of-snapchat-from-a-stanford-frat-house-to-a-3-billion-ipo-2017-1. Snapchat allows users to take a picture and send it to friends for a limited amount of time before the picture disappears and the receiver can no longer access it. Users are able to add text to their pictures as well as emoticons. Along with this, Snapchat users can post “stories” to their Snapchat that allows all of their friends on the platform to be able to see their picture. Biz Carson, The Rise of Snapchat from a Sexting App by Stanford Frat Bros to a $3 Billion IPO, Business Insider (Feb. 5, 2017), https://www.businessinsider.com/the-rise-of-snapchat-from-a-stanford-frat-house-to-a-3-billion-ipo-2017-1.
[3] Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038, 2047–48 (2021).
[4] B.L. by and through Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 175 (3d Cir. 2020), cert. granted, 141 S. Ct. 976 (2021), and aff’d, 141 S. Ct. 2038 (2021).
[5] Mahanoy Area Sch. Dist., 141 S. Ct. at 2043. B.L. also unsuccessfully tried out for a private softball team’s right fielder position during her sophomore year. Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. Several cheerleaders and other students approached the coaches “visibly upset” by the posts. Id.
[10] Id. at 2047.
[11] Id. at 2043.
[12] Id.
[13] B.L. by and through Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 176 (3d Cir. 2020), cert. granted, 141 S. Ct. 976 (2021), and aff’d, 141 S. Ct. 2038 (2021).
[14] Id.
[15] Id. 42 U.S.C. § 1983 is a federal statute that allows people to sue the government for civil rights violations. 42 U.S.C § 1983 (2012).
[16] B.L. by and through Levy, 964 F.3d at 176, cert. granted, 141 S. Ct. 976 (2021), and aff’d, 141 S. Ct. 2038 (2021).
[17] Id.
[18] Id.; see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
[19] B.L. by and through Levy, 964 F.3d at 176, cert. granted, 141 S. Ct. 976 (2021), and aff’d, 141 S. Ct. 2038 (2021); see Tinker, 393 U.S. 503.
[20] B.L. by and through Levy, 964 F.3d at 194, cert. granted, 141 S. Ct. 976 (2021), and aff’d, 141 S. Ct. 2038 (2021).
[21] Id. at 189; see Tinker, 393 U.S. 503.
[22] Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038, 2044 (2021).
[23] Id. at 2047.
[24] Lee Goldman, Student Speech and the First Amendment: A Comprehensive Approach, 63 Fla. L. Rev. 395, 404 (2011).
[25] Tinker, 393 U.S. 503 (1969).
[26] Id. at 504.
[27] Id.
[28] Id.
[29] Id. at 505.
[30] Id.
[31] Id. at 506.
[33] Lee Goldman, Student Speech and the First Amendment: A Comprehensive Approach, 63 Fla. L. Rev. 395 (2011).
[34] Tinker, 393 U.S. 503 (1969).
[35] Id. at 514.
[36] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 676 (1986). The Court found that the school district acted within its authority when it suspended a student who gave an elaborate, graphic, and sexually explicit speech at a school assembly. The Court further refined the rule set forth in Tinker stating, “The First Amendment does not prevent school officials from determining that to permit a vulgar and lewd speech would undermine the school’s basic educational mission.” Id. at 685–86.
[37] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). In Kuhlmeier, the students were staff members of the school’s newspaper. The school’s principal deleted two pages of the newspaper that contained one article about school students’ experiences with pregnancy and another article discussing the impact of divorce on students. The Court explained that the principal’s actions were reasonable because the school had an interest in preventing the publication of articles it deemed inappropriate and that might appear to have the imprimatur of the school. The Court found that school officials can exercise control over the style and content of student speech in school-sponsored expressive activities if their actions are reasonably related to legitimate pedagogical concerns. Id. at 273.
[38] Morse v. Frederick, 551 U.S. 393, 410 (2007). In Frederick, the 2002 Olympic Torch Relay passed through Juneau, Alaska where the students and staff of Juneau–Douglas High School participated in the Relay as a class trip. Id. A student and his friends unfurled a banner that said, “BONG HiTS 4 JESUS”; the principal immediately demanded that the students take the banner down. Id. All of the students’ friends complied but he did not and the principal suspended the student for 10 days. Id. The Court held that the principal’s action was reasonable because the message promoted illegal drug use which violated the school’s policy even though the event did not occur at school, it was a school-sponsored event and therefore the school could regulate the event. Id.
[39] Wynar v. Douglas County Sch. Dist., 728 F.3d 1062, 1068 (9th Cir. 2013). The Second Circuit explained that if off-campus speech foreseeably creates a risk of substantial disruption in the school environment, then school districts can regulate off-campus student speech. Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008). The Fourth Circuit determined that when a student’s speech has significant nexus with the school, the First Amendment cannot hinder school administrators from addressing the problem. Kowalski v. Berkeley County Schools, 652 F.3d 565, 577 (4th Cir. 2011). The Eighth Circuit adopted a “true threat” analysis where: (1) “a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another; and (2) the speaker must have intended to communicate his statement to another person or third party.” Doe v. Pulaski County Spec. Sch. Dist., 306 F.3d 616, 622-23 (8th Cir. 2002). The Ninth Circuit held that schools may take disciplinary action in response to off-campus speech when faced with an identifiable threat of school violence. Wynar v. Douglas County Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013).
[40] Id. at 1068.
[41] J.S. ex rel. Snyder v. Blue Mt. Sch. Dist., 650 F.3d 915, 932 (3d Cir. 2011) (quoting Morse v. Frederick, 551 U.S. at 405).
[42] B.L. by and through Levy v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020). The Fifth Circuit held that if a student composes and stores the speech off-campus and does not purposefully bring it to campus, then the First Amendment protects the speech. Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 619 (5th Cir. 2004).
[43] Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038, 2045–46 (2021).
[44] Id. at 2046.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id. at 2047.
[52] Id. at 2047–48.
[53] Id. at 2048.
[54] Id.
[55] Id. at 2049 (Alito, J., concurring). For example, schools cannot regulate student speech when the speech is not specifically directed at the school, school administrators, teachers, or fellow students. Id. at 2049 (Alito, J., concurring). Schools also cannot regulate student speech that addresses matters of public concern, including subjects like politics, religion, and social relations. Id. at 2049 (Alito, J., concurring). But schools can regulate off-campus speech when the speech takes place during an extension of the regular school program, such as online instruction, transportation to and from school, or assigned homework. Id. at 2049 (Alito, J., concurring). Additionally, schools may regulate off-campus speech when students participate in school activities with the parents’ consent, such as field trips, school sports, and other extracurriculars. Id. at 2049 (Alito, J., concurring). Justice Alito explained that the present case does not fall into any of these categories. Id. at 2049 (Alito, J., concurring).
[56] Id. at 2052 (Alito, J., concurring).
[57] Id. at 2053 (Alito, J., concurring).
[58] Id. at 2053 (Alito, J., concurring).
[59] Id. at 2059 (Thomas, J., dissenting); see Morse v. Frederick, 551 U.S. 393, 419, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (concurring opinion).
[60] Mahanoy Area Sch. Dist., 141 S.Ct. at 2059–63 (Thomas, J., dissenting); see Tinker, 393 U.S. 503.
[61] Id. at 2063 (Thomas, J., dissenting).
[62] Id. at 2062 (Thomas, J., dissenting).
[63] Id. at 2062–63 (Thomas, J., dissenting).
[64] Id. at 2046.
[65] Id. at 2047–48.
[66] Id.
[67] Id. at 2063.
[68] Kyle King, Column: The Gray Area of Student Speech, Quad-City Times (Aug. 25, 2021), https://qctimes.com/opinion/columnists/column-the-gray-area-of-student-speech/article_87850cf3-1b80-5fd9-8376-f3d8376995f8.html.
[69] Id.
[70] Cheadle on behalf of N.C. v. N. Platte R-1 Sch. Dist., 21-CV-06084-SRB, 2021 WL 3621877, at *4 (W.D. Mo. Aug. 16, 2021).
[71] Id. at *1.
[72] Id. at *2.
[73] Id. at *2.
[74] Id. at *4; see Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038, 2046 (2021).
[75] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969).
[76] Id.
[77] Mahanoy Area Sch. Dist., 141 S. Ct. at 2046.
[78] Kyle King, Column: The Gray Area of Student Speech, Quad-City Times (Aug. 25, 2021), https://qctimes.com/opinion/columnists/column-the-gray-area-of-student-speech/article_87850cf3-1b80-5fd9-8376-f3d8376995f8.html.
[79] Bob Brown, Wellesley Schools Recap: Bias Reporting System Under Review; Masking Update; Superintendent Support Discussed, The Swellesley Rep. (Nov. 14, 2021), https://theswellesleyreport.com/2021/11/wellesley-schools-recap-bias-reporting-system-under-review-masking-update-superintendent-support-discussed/.
[80] Daniel Domenech, executive director of the School Superintendents Association, said that Mahanoy left school administrators confused on when they can respond to student speech. Denisa Superville, Educators Look for Guideposts in Supreme Court Ruling on Student Free Speech, Educ. Week (June 23, 2021), https://www.aasa.org/pages/templates/gsesearch.aspx?q=student%20speech (quoting Daniel Domenech).
[81] About the Supreme Court, U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about (last visited Oct. 17, 2021).
[82] Supreme Court Cases, October term 2019-2020, Ballotpedia, https://ballotpedia.org/Supreme_Court_cases,_October_term_2019-2020 (last visited Oct. 17, 2021).
[83] Rory Allen Weeks. The First Amendment, Public School Students, and the Need for Clear Limits on School Officials’ Authority Over Off-Campus Student Speech, 46 Ga. L. Rev. 1157, 1164 (2012). See also Doninger v. Niehoff, 565 U.S. 976 (2011); Blue Mt. Sch. Dist. v. J.S. ex rel. Snyder, 565 U.S. 1156 (2012) (denying two Third Circuit cases); Kowalski v. Berkeley County Schools, 565 U.S. 1173 (2012).
[84] See Abbott v. Pastides, 139 S. Ct. 1292 (2019); Collins v. Putt, 141 S. Ct. 1465 (2021).
[85] The two years in between Bethel and Hazelwood providing an exception. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393, (2007).
[86] See U.S. Const. amend. I.
[87] For example, in the Eastern District of Missouri, there is a $402 filing fee for civil cases. Fee Schedule, U.S. Dist. Ct. E. Dist. of Mo., https://www.moep.uscourts.gov/fee-schedule (last visited Oct. 17, 2021). An attorney’s average hourly rate in Missouri in civil litigation is $238. How Much do Lawyers Charge in Missouri?, Clio, https://www.clio.com/resources/legal-trends/compare-lawyer-rates/mo/ (last visited Oct. 17, 2021).
[88] Court of Appeals Miscellaneous Fee Schedule, U.S. Cts., https://www.uscourts.gov/services-forms/fees/court-appeals-miscellaneous-fee-schedule (last visited Oct. 17, 2021). Again, the parties would each have to pay for their attorneys, accruing even more costs.
[89] Information Sheet for Filing Petition for Writ of Certiorari, U.S. Cts., https://www.ca4.uscourts.gov/docs/pdfs/petition-for-writ-of-certiorari-information-sheet.pdf (last visited Oct. 17, 2021).
[90] Mahanoy Area Sch. Dist. v. B. L. by and through Levy, 141 S. Ct. 2038, 2046 (2021).