A Review of Significant Supreme Court Decisions of the 2020-2021 Term, 0921 SCBJ, SC Lawyer, September 2021, #46

PositionVol. 33 Issue 2 Pg. 46

A Review of Significant Supreme Court Decisions of the 2020-2021 Term

No. Vol. 33 Issue 2 Pg. 46

South Carolina BAR Journal

September, 2021

By Kevin R. Eberle

The 2020-2021 term of the Supreme Court ends on October 4, 2021. The most significant development was the addition of Justice Amy Coney Barrett on October 27, 2020. She joined too late to take part in all this term’s cases and obviously had not voted on which cases to hear. She did join the majority in two of the most highly political cases of the term, but a one-vote swing would have not changed either outcome: The Court upheld (for the third time) the Affordable Care Act (7-2)1 and struck down (for the second time) important portions of the Voting Rights Act (6-3).2

Every case decided by the Supreme Court is an important one. But not every case riles “Facebook lawyers,” has broad application, or answers fundamental constitutional questions equally. The hit parade of Supreme Court cases this term was not especially deep. Cases such as the challenges to the Voting Rights Act and the Affordable Care Act grabbed headlines because of their stand-alone significance, but neither will likely be included in future Con Law textbooks for significant new principles. Still, the term did produce some significant (or at least interesting) opinions that answered important questions, including the following.

Does the First Amendment protect off-campus student speech? Mahanoy Area School District v. B.L., 141 S.Ct. 2038 (2021)

In Mahanoy Area School District v. B.L.,[3] the Court revisited how the First Amendment applies in schools. Although the First Amendment covers student, the Court has carved out exceptions involving student speech. In Mahanoy, the Court reaffirmed the need to balance competing interests but placed its thumb on the side of greater First Amendment protections.

Freshman cheerleader Brandi Levy did not take very well to being rejected by both her high school’s varsity cheerleading team and a softball team. The next weekend, while at a convenience store, she posted a picture of herself on Snapchat with middle fingers raised and a vulgar caption, which read: “F---school f--- softball f--- cheer f--- everything.” She posted a second time to suggest she was unfairly relegated to the junior varsity (JV) squad. Her Snapchat audience included about 250 “friends,” one of whom shared it with other students. The message spread, and eventually some “visibly upset” students approached the cheerleading coaches. Students also talked about the post during a math class taught by one of the cheerleading coaches. The school decided her message violated both team and school rules. As a result, Ms. Levy was suspended from the JV cheerleading team for a year, and litigation ensued.

Although Tinker v. Des Moines Independent Community School District established that students do not “shed their constitutional rights to freedom of speech or expression” even “at the school house gate,”4 the Court has previously carved out some forms of student speech that may be regulated by the schools, including (1) vulgar speech at a school function, (2) speech promoting drug use, and (3) speech that could be understood as bearing the school’s imprimatur.5 A fourth category of regulable speech is that which “materially disrupts classwork or involves substantial disorder or invasion of the right of others.”6

The Court rejected the Third Circuit’s analysis that made all off-campus student speech off-limits but struck a balance that favored the student’s position anyway. The Court identified three features of off-campus speech that favored greater First Amendment protection. First, when a student is off-campus, the school is unlikely standing in place of the student’s parents and should leave discipline September 2021 47 to parents. Second, since all speech is either on-campus or off-campus, erasing any boundary between the two would place all student speech under possible control. Third, schools should affirmatively protect unpopular expression if they are going to be “nurseries of democracy.”[7]

The cheerleader’s speech did not ft into any other category of regulable student speech, and the Court did not agree that the disruptions it caused (i.e., a few minutes out of a math class and some negative reactions by team members) outweighed the reasons to protect the speech. The Court refused to create any bright-line rules because the scenarios with student speech are just too far-fung. Instead, the Court announced the task left to trial courts: Deciding when the special features weighing in favor of First Amendment protection could be overcome by the school’s diminished but still existing power to regulate student speech. Without explicitly saying so, the Court’s language through its opinion hinted at the answer: Rarely.

May the NCAA limit compensation to student-athletes?

NCAA v. Alston, 141 S.Ct. 2141 (2021)

One of the most eagerly awaited decisions of the term was poised to be a deathblow to NCAA rules governing student athletes. In NCAA v. Alston,8 the NCAA contended that it should be allowed to cap all manner of student-athlete compensation, but the student-athletes argued on appeal that caps on benefits tied directly to education violated the Sherman Act. Because only that narrow class of benefits was at stake, the Court declined to issue a far-ranging ruling and ruled that the NCAA could no longer cap education-related benefits. While the ruling was powerful in the sense that it united the justices in a unanimous verdict for the athletes, it was also a tepid ruling in practice.

The Court opened with a history of student-athletes’ payments, peppered with amusing quotes and anecdotes dating back to an 1852 Harvard-Yale boat race at Lake Winnipesaukee, New Hampshire that was the frst instance of intercollegiate sports. The story continued through the formation of the NCAA to coordinate rules among the schools based on the tenet of amateurism and brought the tale up-to-date with recent tweaks to the compensation limits.

The student-athletes asserted that the NCAA rules violated § 1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.”9 The Sherman Act has not been applied to all restraints of trade, but only to “undue” restraints. To distinguish permissible from undue restraints, courts presumptively use a fact-intensive “rule of reason” analysis. The lower court determined schools compete for the best recruits and would, if not for the NCAA limits, pay far more for them; however, schools avoid that race-to-the-top knowing the NCAA’s monopoly means there will be no renegades that disobey the NCAA limits and go it alone in college sports.

The trial court split its relief, keeping the limits on student compensation (e.g., direct pay and cars) but...

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