Free Speech

First Amendment Protects Nondisruptive Student Speech Calling for Principal To Be Fired

So a federal district court held Monday, and concluded that this principle was well-established enough to defeat a qualified immunity defense.

|The Volokh Conspiracy |

From U.S. District Judge Mark Cohen's decision Monday in K.B. v. De Kalb County School Dist.:

Defendant Rebecca Braaten … was hired as [Chamblee Charter High School]'s principal at the beginning of the 2017-2018 school year. During that school year, several public controversies related to Braaten's performance erupted in the community. [Details omitted.-EV] In August 2018, Braaten returned for her second year as principal and K.B. began attending CCHS. K.B. was aware of the criticism regarding Braaten after discussing the issue with friends and family, reading about it online, and watching a series of television news programs about it in June 2018. After less than two months at CCHS, K.B. was concerned about Braaten's leadership and discussed the matter with his friends at school. He and his family signed the online petition calling for Braaten's reassignment.

On October 1, 2018, K.B. designed stickers with Braaten's professional headshot photograph and the words "Fire Braaten" overlaid on a waving United States flag "to express his political views on the controversy regarding the principal." K.B. placed a sticker on his phone case and openly displayed it at school. K.B. printed "no more than thirty-six" stickers and handed some to other students who requested them. He assumed the students would wear the stickers to express their viewpoints, and no one indicated to K.B. that they had other plans for display of the stickers. K.B. distributed some stickers to students during lunch who requested them. The stickers were openly displayed on personal backpacks, lunch boxes, and phone cases. K.B. was not aware of and had no reason to be aware of any stickers placed on school property and did not see his stickers displayed on anything other than students' own personal property….

School authorities concluded "that K.B. had violated the code of conduct rules regarding 'disrespectfulness' and 'creating a disturbance," and suspended him for a week, though this was then reduced "to a one-day in-school suspension for 'creating a disturbance.'" This violated K.B.'s well-established First Amendment rights, the court concluded, unless the school could show that the speech was indeed likely to substantially disrupt school activities—and, given K.B.'s allegations, a factfinder could conclude that there was no such likelihood. The case can go forward, in theory towards a trial in which the factfinder would indeed decide whether the substantial disruption standard is met (though in practice such cases often settle after the motion to dismiss is denied).

The school argued that, as a matter of law,

[C]onsistent with Tinker's protective rationale and Fraser's civility considerations, schools may discipline students for insubordination and open displays of disrespect or contempt for school employees.

But the court rejected this argument, concluding that (1) the Bethel School District v. Fraser exception applied only to vulgar speech, and not to all expression of "disrespect or contempt for school employees," and (2) the Tinker exception applied only when there was a real showing of likely substantial disruption—such disruption can't categorically be assumed just because speech calls for a principal to be fired

Sounds quite right to me; for more on K-12 students' free speech rights, watch this:

NEXT: Joe Biden and the Limits of Moderate Politics

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  1. “…a one-day in-school suspension for ‘creating a disturbance'”.

    So, he goes to the group W bench then. Or not, since this was overturned. Good thing they didn’t get him for littering.

  2. Actions such as this would seem to be counter-productive. Punishing a student for speaking out on an already public issue is very unlikely to suppress criticism and indeed is likely to produce more criticism and more publicity for it.

    1. Yes, it’s really stupid – but a school administration major is likely to be one of the stupidest people who’ve earned a college degree.

    2. Agreed. It is a recurring pattern that tyrants do not understand the Streisand Effect.

    3. Bill Poser’s point is proven by a search for Rebecca Braaten’s name in Google News. Up to the end of 2018 she was strictly a local story in the Atlanta media. This week she’s featured in national publications.

    1. What does this comment mean? Is it posted by Eugene? Very confusing. I don’t recall comments like this from before the (terrible) Reason re-formatting.

      1. I believe that if you google e.g. ‘Jehtro Lewis’ you’ll find out that he linked to this post from his own blog. I’m not up on the details. There is a wiki article titled ‘Pingback’ that might offer insights. They are a fairly common thing (and I agree, a bit annoying).

        1. On some blogs they are much less annoying because they are formatted differently from comments and are easily distinguished from them.

  3. The only thing mentally weaker than a school official is a whiny conservative.

    1. What the hell does that comment have to do with anything at issue here?

      1. If the peasants don’t read his reproaches they won’t know that he looks down upon them.

    2. If you don’t like what Prof. Volokh writes, you don’t have to read him, but calling him “mentally weak” doesn’t really advance the discussion.

  4. Braaten sounds like a lovely person, there are some interesting articles online about her tenure. Rigging teacher of the year and getting caught is pretty classic behavior

  5. This is a charter school? If it’s a school of choice, the whole point is that if the principal is bad you get to choose a different school.

  6. Russia recently imposed fines for expressing “disrespect for the government”. Similar thinking…

  7. Everything, it seems, depends on what we mean by “disrupt.”

    Does it mean something like what is meant in an adult First Amendment context, people will become violent or something like that?

    Or does it mean something less, perhaps as little as the educational program will be harder to achieve (which is quite plausible if the children have less respect for the principle’s authority?)

    The “Bong Hits 4 Jesus” case could go either way. It strongly suggests that “disrupt” calls for significantly less than a fear of violence, perhaps as little as diverting the students’ attention from what the school personnel want them to focus on.

    In an adult context, there is a tendency to look out for the possibility of authority figures retaliating for disrespecting their authority. Adult citizens get to disrespect authority.

    The difficulty here, however, is that it is by no means clear that the Constitution requires this to be the case in a school context. In a school context, the tradition of regarding school authorities as standing in loco parent is has meant that such behavior on authorities’ part is generally considered legitimate.

    1. I think there are 2 problems with your argument. First, under Tinker, the disruption must be “substantial.” Mere distraction doesnt cut it (as the facts of Tinker make clear).
      Second, in loco parentis has essentially been a dead letter for years. See Alito’s concurrence in Morse v Frederick

  8. […] school leadership,” and are focused on “undermining” Braaten’s authority. It argued that “[c]onsistent with Tinker’s protective rationale and Fraser’s civility […]

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