School, Students, & Speech: A Constitution Day Special w/ Civics 101's Nick Capodice

Do your rights end at the schoolhouse door? In a special episode of Fabric of History, Mary and Gary are joined by Nick Capodice, co-host and Education Outreach Producer for Civics 101, the podcast refresher course on the basics of how democracy works. What do the decisions of cases like Mahanoy Area School District v. B.L. teach us about the relationship between students’ rights and schools’ ability to enforce protocol? And what exactly is the difference between on-campus and off-campus speech?

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Transcript

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Intro/Outro (00:06)
From the Bill of Rights Institute, Fabric of History weaves together US history founding principles and what all of this means to us today. Join us as we pull back the curtains of the past to see what's inside.

Haley (00:20)
Do your rights end at the schoolhouse door? In a special episode of Fabric of History, Mary and Gary are joined by Nick Capodice, co-host and education outreach producer for Civics 101. The podcast refresher course on the basics of how democracy works. What do the decisions of cases like Mahanoy Area School District v. B.L. teach us about the relationship between students, freedom of expression, and school's ability to enforce protocol?

Mary (00:51)
Hey, everybody, welcome to a very special episode of The Fabric of History. I'm your host, Mary Patterson. And as ever, I am joined by one of my favorite colleagues, Gary Colletti.

Gary (01:03)
Oh, Hi. But thank you. Yeah, happy Constitution Day, everybody.

Mary (01:06)
So as you can imagine, for employees of the Bill of Rights Institute, the Constitution is a pretty big deal. And when September 17 rolls around, that's Constitution Day, we jump on the opportunity to talk about how the Constitution affects our lives. This year, we're celebrating Constitution Day by exploring the ways liberty and equality interact in the Constitution and how we continue to balance these principles in our lives. For this special episode of The Fabric of History, we're exploring how the Constitution connects with student expression in the 21st century. And to help us out, we are beyond excited to be joined by Nick Capodice of the Civics 101 Podcast. Nick, thank you so much for being with us today.

Nick (01:52)
Mary and Gary, the pleasure is absolutely more than half mind delighted to be here on this day of days, Constitution Day.

Mary (02:01)
So if you have not checked out the Civics 101 podcast, I highly recommend that you do. It's a podcast refresher course on the basics of how democracy works. Not only are we big fans of the Constitution, but we're super huge fans of democracy. And they cover everything from Magna Carta to Moving day at the White House. So it's really a great listen. So again, check it out. And again, Nick, we're super happy that you're with us.

Nick (02:24)
The road of admiration goes two ways. Mary, thank you so much.

Mary (02:28)
So as you guys watch this video, think of questions that you'd like to ask. Nick, Gary, and I. Nick will be back with us on Constitution Day to answer your questions live. And you can follow the link below to submit questions and receive a variety of useful resources videos on the Constitution as we lead up to the day itself. So let's jump right in, shall we?

Nick (02:53)
I'm ready to go.

Mary (02:55)
All right. So, Gary, you are very big on this idea of taking things for granted, or I think that that's something you've mentioned on our podcast before.

Gary (03:05)
I'm sorry, am I a fan of taking things for granted? You mean like looking at things that we take for granted, and that's a better way? Got you.

Mary (03:14)
So I think the Constitution is one of those things because I know I don't wake up in the morning and go, oh, my God, I'm so excited that we have the First Amendment. But in reality, maybe I should because the freedom of expression and the other rights enshrined in that First Amendment, they're incredibly powerful. But if you are talking about school and social media, then it starts to get messy. And we do love a good messy situation to talk through here on this podcast.

Gary (03:51)
Absolutely. On a day like today as well, sort of focusing. That's a big question. We're big fans of the big questions, but drilling down even more into what does it mean for students, I think is a great question. You had asked that before. Right. So if it's Constitution Day, what does that mean for student expression and in their lives? And I'm so glad Nick is here because I think even starting with that, where can we go to the Constitution to think more about these things, to not take for granted about students and their rights of expression?

Nick (04:24)
I think about this all the time. We did an episode on the Bill of Rights, and we were delighted to have Dr. Bobb from the Bill of Rights Institute on that episode, as well as a wonderful scholar named Woody Holton. It's a funny contrast because Dr. Bobb was all about the Bill of Rights in the First Amendment. And Woody Holton, whom I love in a bit of a waggish way, referred to the Bill of Rights as a tub to a whale. It's a thing that happened, but nobody really thought about it at the time. And yet it has become my favorite part of the Constitution. I dare say many people out there watching this and the First Amendment was my gateway to civics was studying the First Amendment in college. So it has become this big thing. But the question to your question, Gary, where in the Constitution does it say students have or don't have freedom of expression? Nowhere. I don't believe the word student is even in the Constitution. And these amendments, which we hold so dear, were not actually no laws were struck down for being unconstitutional in regards to the First Amendment until the 1920s.

Nick (05:25)
And that blew my mind when I first learned that it wasn't until Schenck, Gitlow, and Whitney and other of these cases in the 1920s that people started to say, well, this speech is constitutional. This speech could be considered not protected by the Constitution. And it's only through the interpretation of the Constitution from the Supreme Court that we do have a definition of speech specifically also when it comes to students.

Gary (05:52)
Okay, so starting with the foundation of questions about the Constitution and as you rightly said, you have to get to interpretation. I'm hearing look to Supreme Court. I love the word cases when it comes to Supreme Court. Right. What's the case like? It's a particular thing, but it's about something bigger. Is it a given that we're talking about students? We're talking they are citizens. They have voices. That's something that I know in our programs is a big thing that we talk about is we want to hear from students. They have things to say and do and express themselves. So what I'm hearing, if I'm correct, is let's look to some Supreme Court cases to kind of shine a light on this big question.

Nick (06:33)
Let's see how we got here. I would love to do that.

Gary (06:36)
Okay.

Mary (06:37)
I think a really good point of departure for us is a very recent Supreme Court ruling in the Mahanoy Area School District case.

Nick (06:46)
Very good choice.

Mary (06:48)
Yeah. So this case is all about, well, before we get it's, about First Amendment, and can public school officials regulate off-campus student speech? So this is, I think, where it gets messy because especially in today's world, where is the line between being on campus and being off-campus? So before I get ahead of myself, let's lay out just the basic facts of the case here. So the decision was issued in June of 2021. So again, very recent case. And what happens is a student, she was a cheerleader in the Mahanoy Area High School. She posted a Snapchat video where basically she was upset because she didn't make the varsity cheerleading squad. So she's 14 years old. And as you can imagine, I know I was kind of dramatic as a 14-year-old myself. She's very upset. And in this Snapchat, she says she's talking negatively about school, about cheerleading, about her coaches, and it's a Snapchat. And she's off-campus and it's not during school hours, but other students show the Snapchat to the coaches. And because of this, she is suspended from the squad and she gets in trouble. So her father and her end up challenging the school, and then they end up bringing it to court saying this violated her First Amendment rights.

Mary (08:21)
There are so many things that are interesting about this, so I'm not sure where to go first, but ultimately what the Supreme Court rules in favor of the cheerleader and says that punishing her violated her First Amendment rights. So those are the very basic facts of the case.

Nick (08:42)
Well, the one thing we maybe should throw in there is that she wasn't just speaking negatively about the cheerleading team, but she used some rather harsh expletives that I would have been punished in school for using at the time, too. So that's just one more thing to sort of keep in the back balance of it. But to your point, I think the most important thing is when this happened and how this happened, what time of day this happened for the cheerleader?

Gary (09:09)
I think that brings up a great point. Again for those watching and perhaps you're already developing some questions here. Nick, I was wondering if you could help us out with if we're going to be utilizing Supreme Court cases to shine a light on the Constitution and what it does? Are there elements within cases we should take a look at, even in this particular case that can help us kind of see more clearly the different things we should be looking for?

Nick (09:31)
Yeah, that's a great thing to ask. There is a great trio of words that we sort of think about when we think about Supreme Court cases and protections of speech in particular. In speech, it's the time, place, and manner of speech, the old TPM. So when you make the thing of speech, the place where you do it and the manner. So we're exploring the time, place, and manner. So when did our cheerleader make that snap? Sorry, snap that chat. Where was she when she snapped that chat and what was the manner? So it was outside of school hours. I've imagined that in her home and the manner was on Snapchat. So you take all those things into question because schools are allowed to police speech while students are in school, and we can talk more about that a little bit down the line. But those are the things you want to kind of consider and that these justices were considering when they handed down this decision.

Gary (10:35)
So that's really important if I can jump in on that in terms of you mentioned before, sort of past experiences. Right. Past cases that sort of will this down. I mean, that phrase, the time, place, and manner, I also don't know that that's in the Constitution necessarily. Right. And so it came about. So I'm wondering if it's worth sort of backtracking and say, like, how did we even get to that in the first place?

Nick (10:59)
Yeah. Should we go back to how far back should we go, Gary? Mary, where you want to go? Dawn of time. I think if we want to explore this sort of chronologically, we can sort of go through students' speech cases and sort of investigate that and talk about that and see what you all think about it. And if anybody out there has any questions or thoughts about this, we would love to hear it because this is how you explore this issue.

Mary (11:26)
I think Tinker is the case. It's not the first case dealing with student speech, but I think that it's sort of the landmark. It's the case. I know even before I was an employee of the Bill of Rights Institute, that's one of the quick cases I just remember from learning in school. I feel like most people are familiar with that case and it's kind of a big deal. It sets a big precedent. So maybe that's a good place to start.

Nick (11:52)
Sure.

Gary (11:53)
Yeah.

Nick (11:53)
You want to talk about Tinker?

Mary (11:55)
Sure.

Nick (11:55)
It's my favorite Supreme Court.

Gary (11:57)
Let's do it.

Nick (11:58)
Now we have to for anybody who hasn't heard of Tinker v. Des Moines then welcome because that's how I was when I started working at Civics 101. I had not heard of Tinker v. Des Moines. I did not know any rules about Supreme Court decisions when it came to student speech. And now I consider myself a friend of Mary Beth Tinker. Mary Beth Tinker, her brother John and a colleague of theirs at school, Chris Evert, I believe, is his name. They joined a planned protest. This was in the late 1960s during the Vietnam War. They wore black armbands to school to protest the deaths on both sides in the Vietnam War, Mary Beth and her brother John wore Quakers. They abhorred violence in any way, shape, or form, in any time, place, and manner. And they wore these armbands to school. And the teachers warned them they could not wear black armbands to school, and they wore them anyway. And so the ACLU got in touch with the Tinkers and they fought their case up to the Supreme Court. And the question was, can you wear a black armband in protest while you're at school?

Nick (13:04)
And the court ruled, and I believe it was 7-2, that, yes, students do have a right to free speech while they're at school with one very large stipulation, which is it can't be disruptive. But I love so much about Tinker v Des Moines. One is that John and Mary Beth to this day. Mary Beth was 13 in the 1960s when she wore that armband to school. So you can be 13 and make a huge difference. A court case that people are fighting about to this day. She was 13. She wore this armband to school. She now tours the country talking about why it's important that students have a right to freedom and expression when they're at school. She's made her personal crusade, John as well, and not everybody was down with it. One of the great quotes I thought was interesting is I believe it was Justice Black who dissented, who said he was scared that it was going to usher in a revolutionary new era of permissiveness, which is heaven forfend the students feel like that they can contribute when it comes to speech. I say unabashed, Mary Gary, to all of you out there.

Nick (14:16)
Yes, bring on the revolutionary era for me. I want to hear what everyone has to say because as Mary Beth says, students, she says, kids, we can say, kids, you whomever have a tremendous ability to see what is unfair more than I do, more than we three here in this room today, student kids, my kids, my goodness, yes. They can spot 1000 miles away. They are a wonderful bellwether for determining what's going on in the world and what's fair and unfair. So that was a great case, right? Tinker v. Moyne was Kaboom. Students have speech in school as long as it's not disruptive. And as the years progressed, the courts ruled and sort of winnowed away at that and said, well, this kind of speech is not permitted and this kind of speech is not permitted and this kind of speech is not permitted. And through goodness me, 50 years, we get here where a Snapchat video, if I'm not wrong, the Mahanoy case is the first victory, the extension of students' rights in the Supreme Court since Tinker v. Des Moines in 1969. I think.

Mary (15:30)
So, tinker. Well, there's a couple of things that come to mind. First of all, thinking faces. Yeah.

Gary (15:36)
People never usually see our thinking faces on our podcast.

Mary (15:40)
I will say this quick comment, though. I love that the Tinkers are still, even to this day, talking about students and expression and making a stand for what you feel is right, because I think so often we hear about a court case and we're like, oh, that happened then, and it doesn't really matter anymore. And a lot of these Supreme Court cases that you get doled out in school, they did happen a long time ago. But here's an example of someone who was very young, 13 is quite young. This has a huge impact even to this day. But it didn't stop there. Like the story continues. So I love that part of the story because that's something we don't often hear. But the other thing that's really the phrase that comes out of Tinker that I think is really interesting and relevant to the Mahanoy case and even beyond. And what may be what comes next is that students do not, quote, shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, end quote. So I think it's this schoolhouse gate. That's what's getting messy. If your speech is disruptive, if it's really harmful, or if it's sexually explicit, which has happened in some other court cases that came to the Supreme Court, then to me as a mom and as a former teacher, I feel like that makes sense to kind of shut some of that speech down.

Mary (17:05)
But in the case of Tinker, it was something very simple. It was just wearing of the black armband. So, like, I went in a lot of places there.

Nick (17:16)
The gate has gotten quite wide, hasn't it? When does the gate begin and when does the gate end? Students who are learning remotely is your home within the schoolhouse gate now, students who are involved in extracurricular activities after school, if you're texting your friend about a play that you're in, are you still in the gate, or are you out of the gate? And people who are working from home, we feel the same way. You're never not at work and you're always at work at the same time. Same with school when we're doing more remote learning. So I think this decision, this precedent, it's got to come up again and again and again as we're re-investigating where that gate, Mary, begins and ends.

Gary (17:58)
So to drive back to where we started about the Constitution, we've mentioned a couple of cases and these cases when they were occurring may seem very different. In one, it is a young person who has thoughts on a war that was happening at the time, a conflict, and ways of protesting that or calling attention to it. And the other, it was a personal event that for our point of view, is modern but is happening today. That was happening personally but was trying to express themselves through a technology that did not exist decades ago. They may, on the surface, seem differently, different from each other, and yet we are talking to them as connected because these cases help us better understand the Constitution and how it applies to students. Right. So I suppose one wrap-up big question I'm thinking about, is that how it generally works? Is our understanding of the Constitution piece together from individual experiences, or do we start with the big ideas of the Constitution and apply them to these individual experiences or both?

Nick (19:12)
Well, when you read a Supreme Court decision. Right. When you read a Supreme Court decision, which you're really going to be looking at is precedent, you're going to look at other cases that have been cited. And the older we get as a nation, the more President we have to look at. You know, Gary, it's easy for me to lionize Mary Beth Tinker and to take our cheerleader case and be like, yeah, but this was someone just sort of using curse words on Snapchat to say they're two completely different worlds. I love that someone using dropping bad words on Snapchat is given the same sort of constitutional judicial weight as somebody protesting death in a war because that's how the Constitution works. It applies to everybody and everything. In New Jersey, you got a 14-year-old girl smoking a blunt in the girl's room and having a bag of weed in his purse. Mary Beth Tinker wears an armband. Hazelwood v. Kuhlmeier, she writes about teen pregnancy in her newspaper. Matthew Fraser makes a rude speech. Nominating his friend for Student Council. I just wanted to say that all these cases, regardless of if they seem of great import or not, are part of who we are as a nation when we're investigating how the Constitution applies to us.

Mary (20:40)
I will piggyback on that. Nick. I think that there was in the decision in Mahanoy, Justice Stephen Breyer wrote the majority and he had this wonderful quote about our cheerleader. He said it might be tempting to dismiss Levy. Randy Levy was her name, the cheerleader. It might be tempting to dismiss Levy's words as unworthy of the robust First Amendment protections discussed herein but sometimes it is necessary to protect the superfluous or the seemingly silly like this rant on Snapchat in order to preserve the necessary. So I think we talk about these foundational principles, these founding principles here at BRI, like Liberty, equality, your First Amendment protections. They are these sort of ideals, these standards that we're always using as our guidepost. And you're right. Sometimes it's protesting a war that was terrible. I mean, all wars are terrible, but protesting a war and sometimes it's complaining. It's this rude, crude, juvenile rant about not making the varsity cheerleading squad. And so they seem, as you said, one doesn't seem so much a heavyweight as the other, but it's still your freedom of expression. Right. And I think the ruling in Mahanoy basically is protecting that.

Mary (22:03)
Sometimes kids say things that are unpopular, but you still have that right to express yourself with restrictions. But this was the case in which she was off-campus, and the decision was the lower court ruled in her favor as well. And the decision was eight to one. So most of the justices, sort of across the spectrum agreed with it. So I think that's to me, that's part of the fun of it is that we have these principles that have been that they're like eternal in a way, and it's just how do we interpret them? How do we apply them? Things always can fit underneath them. And I think that's sort of the beauty of the document itself, whether you're talking about the Constitution or whether you're talking about the Bill of Rights.

Nick (22:50)
And in a bit more of a fun side, no way. It's also quite beautiful that these judges, mostly around the age of 60 and older, learned a lot about Snapchat very quickly, learned a lot about cheerleading. And there are some funny quotes of these justices talking about what she did and how she should be punished or not punished. But you mentioned Justice Breyer. I think, Mary, you and I were talking about earlier, there was a quote, and I hope I get it right that you told me about Justice Breyer saying that classrooms are nurseries of democracy. Is that what it was?

Mary (23:24)
Yes.

Nick (23:26)
I went to sleep last night thinking about that expression. I can't stop thinking about it.

Mary (23:32)
It's so true. I was just going to say, like you guys listening out there in school, you are in the nursery of democracy right now.

Gary (23:43)
Things are developing and things are yeah.

Nick (23:48)
We recently did an episode on Brown v. Board of Education, and the judge I was interviewing mentioned the quote, that education is the very foundation of good citizenship. That came from Earl Warren's opinion in Brown v. Board of Education school. You can look at his drudgery and a chore, but in your heart of hearts, you are truly it is the cornerstone of citizenship. It is the nursery of democracy, of figuring out civics. One of my soapbox things is that civics isn't just how a bill becomes a law and the difference between the House and the Senate. Civics starts when you're one year old. Civic starts when you learn how to share toys with your brother. Civic starts when you learn what you can say and not say in kindergarten. And it never stops.

Gary (24:36)
It sounds to me, like, if the question is, what does the Constitution have to do with student expression? I feel like everything a lot I would aim is from what you're saying, it sounds like, well, student expression has a lot to do with the Constitution and all the different choices and the things that on a day-to-day level, it sounds like it's everywhere. That's sometimes what makes it hard to see. But if you take a few moments to look, you could see it in classrooms right now that you yourselves are sitting in. So that was excellent. That was excellent.

Mary (25:11)
I think we've come to this conclusion before on the fabric of history, but what you say matters where you say it, how you say it. So I mean, you may not have a Supreme Court case, you might not be in a Supreme Court case in your lifetime, but you're still a citizen and so you're still a fabric. You're a part of this fabric, our society. So you matter and you have a right to express yourself. But there are limits on that, and that's the fun and that's the discussion. So because you are citizens in the fabric of our society, we want to know what questions or comments occurred to you as you're watching this video. Use the link below and send them directly to us and we'll answer them and talk through them on Constitution day live. In the meantime, check out our other videos we've designed for Constitution day, including an analysis of the Constitution itself and why it is relevant to students, a trip to Mount Vernon to explore what historic structures can teach us about the complexity of our country's founding, and more. We'll be exploring these issues all year, so stay involved with us on social media, look out for more events and ways to get involved.

Mary (26:24)
Be sure to like and subscribe to our channel. You have to check out civics 101 to hear Nick and his co-host Hannah. They're amazing. So again, Nick, thank you so much.

Nick (26:35)
Thank you, Mary. Thank you, Gary, this has been an absolute delight.

Gary (26:38)
Yeah. Thanks for spending some time with us on Constitution day.

Nick (26:41)
Anytime.

Mary (26:43)
All right. We'll see you on Constitution day, everybody. Until then, keep asking questions.

Intro/Outro (26:55)
The Bill of Rights Institute engages, educates, and empowers individuals with a passion for the freedom and opportunity that exists in a free society. Check out our educational resources and programs on our website. mybri.org any questions or suggestions for future episodes? We'd love to hear from you. Just email us at comments@fabricofhistory.org and don't forget to visit us on Facebook, Twitter, or Instagram to stay connected and informed about future episodes. Thank you for listening.