Near Unanimity, Untethered

Not a great deal occurs in the U.S. Supreme Court that has workers' compensation implications. But occasionally a case is worth noting. No, this is not a post about the potential that someday college athletes could be deemed employees, though there has been significant hyperbole on that recently in light of the unrelated decision in NCAA v. Alston, No. 20-512 (June 21, 2021). That is a case about the Sherman Anti-trust Act, and while it is interesting, it does not say that student athletes are employees.
This blog has often referenced the inherent respect and deference that our common law system is supposed to demonstrate for prior court decisions. We call it stare decisis and it lies at the very core of our common law system. I have been hard on courts that ignore it, some would say too hard. No one, it seems, is very good at taking honest criticism at face value. For examples see Stare Decisis, Death Penalty, and Workers' Comp (January 2020), and the posts linked therein. For those I may have offended with my critique and analysis, I offer sincere apologies. 
That said, the U.S. Supreme Court rendered another opinion recently, in near unanimity. Mahanoy Area School District v. B. L., a Minor, by and through her father, Lawrence Levy and her mother, Betty Lou Levy. As a side-note, the courts use initials for minors. This protects the individual's anonymity. However, with some careful sleuthing, there is some potential that "B.L." may actually be named "Levy," and may in fact reside with Lawrence and Betty Lou Levy. It may seem a bit ironic to "protect" the minor with initials and then publicly identify the parents by full name. 
That near unanimity is noteworthy in a "weary world." While it is encouraging to see the near unanimity, it is the dissenting voice, the lone voice, that resonates in this instance. It is a critical voice, borne of logic and principle. The message is both clarion and informative, while also critical. The situation in this litigation starts with a teenager, disappointed with a decision denying membership on the varsity team. Disappointed and troubled, the teen voiced emotion on social media in 2017, as teens sometimes do. The majority notes that the teen "did not accept the coach’s decision with good grace."
In the student's haste and emotion, perhaps a few too many "f-bombs" were used, as well as a photo of a (likely) familiar hand gesture, to the consternation of some and the condemnation of others. One observer took a "screen shot" of the media post and brought it to the attention of the team coach. The student was "suspended for a year," not from school but from the team. This, according to the dissent "may strike some as disproportionate." Imagine you had been afforded a one year sentence for each time you dropped such a bomb in high school; how long might your sentence have been? I fear I would still be serving my sentence. Of course, we had the benefit of not carrying computers in our pockets and of lacking 24/7 access to transmitting our every inane thought. 
The real issue in the case is not about f-bombs, good grace, consternation, or proportion. It is not about teenage angst and disappointment (I knew a kid in high school that was never disappointed, but only one; "and his hair was perfect," Warren Zevon, 1988). The critical analysis, according to the dissent, is whether this decision is in keeping with our common law system.
Justice Thomas explained perceptions of flaws in the majority conclusions regarding Brandi Levy (as identified in the press, but not the decision, i.e. "B.L.," see supra). The justice identifies three of four critical points worthy of discussion.
First is the concept of "in loco parentis." When students are at school, its authorities are standing in place of parents. Therefore, a variety of precedent has held schools have been able to "discipline disrespectful speech," and otherwise regulate behavior. The dissent cites decisions dating to the adoption of the Fourteenth Amendment (Civil War). It is noteworthy to remember that it is the Fourteenth through which the protections of the Bill of Rights (thus the First Amendment, free speech, etc.) have been held to constrain the states and not merely the federal government. Thus, the law in the time of its adoption is suggested to be of interest.
The dissent notes that precedent have cited the “good order and discipline of the school,” and "the best interest of the pupils." The law has supported discipline of students for both on and off-campus behavior. The off-campus justification has been based upon the conclusion that it "reach(es) within the schoolroom during school hours and are detrimental." Thus, though the school is not "in loco parentis" when the students are away, it nonetheless has been allowed to regulate some student behavior. Thus, schools have been affirmed in regulating off-campus speech that "has a proximate tendency to harm the school, its faculty or students, or its programs."
The dissent closes this discussion with "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." Thus, not a condemnation of the decision, but a suggestion that when a court departs from precedent it (1) acknowledge that precedent, and (2) explain the reason for reaching a different decision in the present instance. That suggestion has merit in every legal process, including workers' compensation. The dissent even suggests some sound reasons for departing from precedent in this instance, but laments the majority does not identify such reason or provide its explanation.
Second, the new test for such speech. Rather than a test per se, the dissent characterizes the decision as "a few pragmatic guideposts." In the absence of concrete parameters, without explanation of the departure from prior decisions, the dissent concludes that the adjudication of "student-speech cases" is now "untethered from any textual or historical foundation." In other words, what standards should a trial court employ in deciding future cases of this nature? The challenge of the law is persistently that the "next" case will include some factual distinction from the present case. It is helpful to therefore have standards and tests discerned by the appellate court for the guidance of both litigants and trial courts.
From a background of nearly unlimited authority of "schools to set rules and control their classrooms," to the present decision, the dissent laments its foreseen challenges for future decisions. The majority is said to provide no test or parameters for future decisions. This is reminiscent of the oft-cited platitude provided by Justice Potter Stewart in Jacobellis v. Ohio, 378 U.S. 184 (1964) regarding pornography: "I know it when I see it." The flaw with such a conclusion is that every allegation of pornography must be then screened by Justice Stewart; the standard afforded to trial courts is essentially "what would Justice Stewart think?" Such a standard does not empower trial courts to make informed legal holdings. Thus, the "untethered" criticism is of broad import.
The dissent says that the majority decision "states just one rule: Schools can regulate speech less often when that speech occurs off campus." the remainder of potentials and distinctions, it notes, are left "for future cases.” In effect, it argues, a "new common-law doctrine" is established, subject to the best efforts of other courts to interpret and refine in years to come. The dissent warns that both "courts (and schools)" will struggle, "almost certainly . . . at a loss as to what exactly the Court’s opinion today means." Is it the content of speech that matters, the location, the impact, the potentials?
As a side noted, other cases have set parameters or "tests. As regards the efficacy of this opinion, and its usefulness to guide future decisions, some may see a parallel in Lemon v. Kurtzman, 403 U.S. 602 (1971) and the so-called "lemon test." This is not cited by the dissent, but may be relevant for consideration. Many critics assert this test is aptly named in that its attempt to bring order to the issues of separation of religion and government did little to forestall litigation or challenge. The decades following its rendition are littered with good faith, yet failed, attempts to implement and apply that test. That attempt at purportedly more of a test, though perhaps well-intentioned, was roundly ineffective.
In the third element of criticism, the dissent is more blunt as regards the majority's reasoning. It notes the majority conclusion "that it 'ha[d] been the unmistakable holding of this Court for almost 50 years' that students have free-speech rights inside schools." However, the dissent notes that the authorities cited in support of this conclusion in fact "do not support it.” There is fault found with prior decisions and criticism of the extent to which the Court previously "explain(ed) itself" in reaching decisions. In criticizing that precedent, there may be a hint of suggestion that Levy may one day be subjected to such criticism. It is also critical that courts are straightforward in both citation of and reliance upon authority. The dissent's suggestion of inaccuracy would be troubling in any discussion of stare decisis, even in workers' compensation. 
Finally, arguably a fourth point, the dissent also suggests that the world is evolving and different. It notes that the communication in this instance was "through social media." Technology facilitates such off-campus speech reaching easily and rapidly into the school environment. This, the dissent urges, may present a greater propensity for potential disruption and harm. The dissent warns that "speech travels" and there will be instances in which "speech is generated off campus but received on campus." There is criticism of the majority for not addressing that potential. Justice Thomas seems convinced that other teenagers might similarly engage in the use of social media, and laments that the decision does not provide context for those future potential (probable?) instances.
There is suggestion that the considerations of regulation and discipline might be different "where it is foreseeable and likely that speech will travel onto campus." Though the dissent cites analog examples, such as a student bringing to school a sketch created elsewhere, the digital implications of speed, ease, and pervading potentials are perhaps seen as worthy of consideration and discussion. The dissent laments the majority not providing guidance in this regard. 
In the end, a teen and a coach perhaps overreacted ("let's not make a federal case out of it," too late). Speech was stifled by a school (what if the social media platform had stifled it?). The law provides various prior decisions, precedent, to steer the current dispute, but the Court reaches the outcome without significant discussion of that precedent; in doing so, the law is purportedly changed, but without the analysis depth to facilitate understanding of those who are governed. 
The challenges of the trial judge and the governed are highlighted. When the appellate court brings the conclusion without explaining the logic, it leaves us to the "next case." Schools, students, parents, lawyers, and more will struggle with what is appropriate, in both action and extent. They will struggle with the on and off-campus characterization and its social medial borders. Litigation will ensue, and judges will struggle. There is no "Stewart" app to check whether the speech is or is not offensive, inciting, or worse. The dissent is intriguing and worthy of a read. Justice Thomas is hard on the Court's decision. 
Whether one is inclined to agree or not with his criticisms, one phrase is hard to criticize. He notes that "if there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it." When courts change our course, when precedent is not followed, it is incumbent to acknowledge that and to explain why. It is also difficult to disregard with his "untethered" conclusion. We learn, usually, from our past. We may also learn from the mistakes of others. By studying history, we are better prepared for the present. That is, essentially, the value of precedent - study of the past. 
Agree or disagree substantively with the dissent, or the near unanimity for that matter. But how the decisions of courts are structured, their discussion of the past, their map and guidance for the future, and their value are always worthy of discussion. That may upset some. But, the real value in that First Amendment is that the minority voices, the dissents, are still voiced. There is "equal time," unless it is stifled by the platform selected, which censorship is a topic for another day. 
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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