Free Speech

First Amendment Protections in K-12 Schools Not "Restricted to Only Core Political Speech"

|The Volokh Conspiracy |

So holds the First Circuit in yesterday's decision in Norris v. Cape Elizabeth School Dist., and I think that's exactly the right reading of the Supreme Court precedents (and consistent with other circuits' decisions).

The particular speech in that case was an anonymous "sticky note on a mirror in a Cape Elizabeth High School girls' bathroom that stated 'THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS.'" One might argue that this is core political speech, because it's an implicit accusation that the school isn't doing anything about this, but the court's decision makes it unnecessary to draw the political/nonpolitical line. "Because we conclude that Tinker is not limited to political speech, we need not decide if A.M.'s sticky note, understood in the context of her prior activities related to sexual assault activism including her statements to the Cape Elizabeth H.S. school board, was objectively viewed as political."

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  1. Other circuits have also said that student speech does NOT need to be on a matter of public concern to be protected by the First Amendment. See, e.g., Garcia v. SUNY Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001); Pinard v. Clatskanie School District, 467 F.3d 755, 765 (9th Cir. 2006).

    1. Yes, but this is a sexual harassment/hostile environment case.
      Couldn’t the boy have sued if the school *didn’t* do anything?

  2. This was wrongly decided because it was harassment about and libel of another student, neither of which is protected by the First Amendment. Footnote #4, pasted below, outlines the details — a specific KNOWN student was accused of rape, and the female student said that she wasn’t raped.

    QED he wasn’t expelled, and this student didn’t like that, and the sticky note was in response — the other students did know who he was. Hence there was the creation of a hostile environment, violating his rights to a FAPE and all the rest. It was textbook Title IX, just with a male victim here.

    And there’s more, the school was dealing with mass walkouts in protest of their investigating these sticky notes and the rest.

    But, IMHO, the Court erred in using the standard of Tinker for peer harassment. Tinker didn’t involve the directed harassment of a specific student. And what about the male student’s rights?

    ” The video showed Student 1 picking up a female who did not attend Cape Elizabeth H.S. from a bed. The video had a caption that stated, “this is Student 1 raping bitches.” School administrators interviewed the female in the video, who told them that Student 1 picked her up in order to convince her to go outside to her car to retrieve her vaping device. She told them that she, Student 1, another female, and two other male Cape Elizabeth H.S. students had been celebrating a birthday at a hotel room, which is where the video was filmed. She told the administrators that Student 1 did not rape her.”

    1. There is a backstory on this — I call the town “Cape Ego” and it likes to think that it is the wealthiest of the Portland (ME) suburbs. Lots and lots of truly spoilt brats there — I drove a bus for a different town and at least once we had to have a police escort to get our buses home after a basketball game — at the time, that was unheard of in Maine.

      There is a big (almost racial) divide between those who are “from” Maine (which this girl’s mother proudly proclaims she is) and those “from away” — with the latter often having more money because their fathers have good jobs in Portland. Fancier clothes and everything else, and that’s also an issue in a high school.

      To those familiar with Maine, this picture tells a thousand words — her younger brother is on the right:
      https://www.valleycentral.com/wp-content/uploads/sites/39/2019/10/4e50dd79dcd449bb9b30d573a2005673.jpg?w=2560&h=1440&crop=1

    2. This was wrongly decided because it was harassment about and libel of another student,

      Please don’t play lawyer. You’re very bad at it.

      1. Speaking as an educator, not a lawyer, I think the court was wrong.

        OCR throws stuff like this at us, and we are required to comply: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

        Now OCR once told me that it complies with Circuit decisions (the Regions relate to the Circuits) so this could be quite interesting. It will also be interesting to see what else gets written on sticky notes — “God Hates Fags” comes to immediate mind, and what’s a school supposed to do then? Is that free speech?

        How about the “N” word. Is that free speech?

        Some kid’s gonna try it — you tell them they can write anything on a sticky note and they will. For the same reason they pull fire alarms (or is that now free speech too?).

        From the decision:
        “On September 17, 2019, Student 1 experienced ostracism from his peers and stayed out of school for the following seven or eight days. The school does not allege that A.M. was one of the students who ostracized Student 1. Student 1’s mother informed the school that she believed Student 1’s treatment at school had been caused by the sticky notes and that this treatment constituted bullying.” [emphasis added]

        Seven or eight days is significant because “chronic absenteeism” is defined as 10% or more of a quarter, which this is. And that comes under school accountability. So the school has two problems — a mother saying her child is being bullied, and him being chronically absent. The FAPE law applies here, and if they don’t do something, they could wind up with a very expensive tuition bill. (His mother will get a lawyer…)

        The Columbine shooting and the Phoebe Prince suicide drive the concern about bulling and I don’t consider it free speech to drive a student out of the school — which is what the goal was here. If the law does, then, respectfully, “the law is a ass – a idiot.”

        And what about the “Bong Hits for Jesus” case? Wasn’t that “free speech”? And that wasn’t even on school property….

        The decision may be legally right, but it is asinine.

  3. This is interesting:
    The Cape Elizabeth School District responded, “While we are disappointed that the appeals court did not reverse the decision of the district court, the importance of this decision is that it affirms the ability of school administrators to restrict student speech that results in the bullying of another student. We have always encouraged our students to speak out on matters that are important to them and we will continue to do so. But from our perspective, that is not what this case was about. As the court recognized, the student, in this case, was disciplined because the school administration believed she was bullying another student and this decision provides further justification for our commitment to protecting the rights of all students to feel safe at school and free from bullying behavior by their peers.”

    https://www.newscentermaine.com/article/news/education/court-of-appeals-affirms-decision-to-block-suspension-of-cape-elizabeth-student/97-414f90a2-6339-446d-8a17-0d0df7650ef1

  4. What about this outrageous case?

    https://www.cnn.com/2020/08/07/us/georgia-teen-photo-crowded-school-hallway-trnd/index.html

    The school’s “reasons” for suspending her are as clear an example of pretext as I’ve ever seen. She was retaliated against for publicly criticizing the government on an issue of public concern. The school presented no evidence that her actions were disruptive, or that such disruption outweighed the message she was trying to raise. Flagrantly unconstitutional, in my opinion.

    1. I heard that the Supt reversed it.

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