The Volokh Conspiracy
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"There's a Rapist in Our School and You Know Who It Is"
A girl in a Maine public high school wrote this on a sticky note in a girls' bathroom; she was suspended for "bullying" a male student who was apparently seen as the target of the message—but a federal judge has stayed the suspension, concluding her speech was probably constitutionally protected.
From A.M. v. Cape Elizabeth School Dist., 2019 WL 5457999, decided Thursday by U.S. District Judge Lance E. Walker; it seems to me to be correct:
[A.] On September 16, 2019, A.M., a student at Cape Elizabeth High School, entered a girls' bathroom and placed a sticky note on a mirror reading, "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." Within minutes, another student discovered the note and brought it to the attention of school administrators. However, later that day other female students engaged in copycat expression in another school bathroom.
Principal Jeffrey Shedd and Vice Principal Nate Carpenter instituted an investigation to determine authorship of the notes and who the notes might be referring to. In the course of their investigation they reviewed camera footage and determined that A.M. was the author of the initial note. The investigation was quite extensive. In all, Shedd, Carpenter and other members of the administration interviewed more than 40 students. Some of what they uncovered would be upsetting to certain students and their families and will not be recounted here. On September 20, 2019, Defendant Shedd sent an email to the school community at large, to which he attached a letter "about an incident in school this week."
Needless to say, the wide-ranging investigation and letter stirred up the hornet's nest of gossip and rumor. Eventually, a certain male student (identified by the parties as "Student 1") experienced what could be described as ostracism by his peers. Upset by his experience, Student 1 remained out of school for several days. Student 1's family informed the School that they considered the entire incident to be a matter of bullying and the school administrators ultimately decided that they agreed with that characterization.
On October 4, 2019, A.M. spoke with the press about her expressive activity and her concern with the School's handling of sexual assault allegations. Also on October 4, 2019, Defendants Shedd and Carpenter wrote a letter to A.M.'s family stating that A.M. "admitted and accepted responsibility for her actions." In the letter he advised that it was his conclusion that A.M. bullied Student 1. On that basis he imposed a three-day suspension and a warning "that any future actions of this sort … may result in further and more severe consequences up to and including suspension and possible expulsion." While A.M. received a three-day suspension, the other girls received shorter suspensions. The other girls either had not spoken with or were not featured by the press, although Defendants deny that this was a factor.
On October 9, 2019, Defendant Shedd wrote another missive to the community in which he summed up the investigation. In it he described the students who authored the sticky notes as having good but misguided intentions. He complained of the national attention the School had received, and he cast shame on members of the media who may have given any "credence" to the assertions contained in the sticky notes. He observed that the students responsible would be given "second chances" and would be able, in their senior years, to request expungement of their suspensions provided they maintain good records in the meantime. [A.M. sued, seeking a preliminary injunction that would block the suspension. -EV] …
[B.] As a threshold matter, for Plaintiff to succeed on her claim, her speech must fall under the protection of First Amendment. Defendants argue that the sticky note was defamatory—falsely accusing another student ("Student 1") of being a rapist—and as such is not protected by the First Amendment. For a statement such as A.M.'s to be defamatory it must be "concerning another" and there must be "fault amounting at least to negligence on the part of the publisher."
The record is not clear on either of these two points, and Defendants cannot convincingly show that the speech is otherwise undeserving of First Amendment protection…. [There is a] significant factual dispute over whether A.M.'s note referred to Student 1. Compare Response at 16 ("The administration convincingly found, however, that the statement was in fact directed at Student 1") with A.M. Decl at ¶ 33 ("at the time I posted the sticky note, I did not even know about the alleged videos [depicting Student 1]"). And even assuming A.M. meant to target Student 1 directly, there is also a live factual dispute over whether A.M. acted negligently in posting the note at all. Reply at 13 ("[A.M.] made a statement … that she believed in good faith to be true of numerous perpetrators in the school."); see also Oct. 9 Shedd Letter (characterizing A.M. as "well motivated, with good intentions"). If these factual disputes resolve in favor of Defendants, they may well undermine Plaintiff's claim; but at this preliminary stage the evidence suggesting her speech might have defamed Student 1 is not enough to undermine a finding that she is otherwise likely to succeed on the merits of her First Amendment claim.
[C.] The record is a mixed bag regarding whether A.M.'s speech was defamatory but speaks much more clearly that A.M.'s sticky note was a political statement…. Unlike the "bong hits" the plaintiff in Morse v. Frederick suggested for Jesus, A.M.'s note speaks out on a topic that is decidedly political. In analyzing whether a student's speech is protectable, I look at an objectively reasonable interpretation of the speech, not the speaker's motive. That inquiry may be informed by context, including the identity of the speaker.
By raising the specter of a rapist in the school and the administration's knowledge of his or her presence, A.M.'s note expresses political advocacy on a question of significant public consequence. Plaintiff insists she was commenting on "the crisis of sexual assault in public schools and the importance of appropriate school procedures to address it," which falls within the ambit of speech "commenting on [a] political or social issue."
Her speech not only contributes to this "political debate" about how schools handle sexual assault, but, if true, highlights a real safety concern for the students of Cape Elizabeth High School. Given the political nature of A.M.'s speech, and the guidance from the Supreme Court that "freedom of speech … guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment," I find A.M. likely engaged in speech protected by the First Amendment….
[C.] To overcome Plaintiff's First Amendment claim, Defendants must show their reason for suspending fits the recognized justifications in Tinker v. Des Moines Indep. School Dist. (1969). Under Tinker's "general rule," the government may restrict school speech that threatens to "materially and substantially disrupt the work and discipline of the school" or "inva[des] the rights of others." Other circuits to interpret this rule have required schools to show "a specific and significant fear of disruption, not just some remote apprehension of disturbance." …
Defendants maintain that the assertion, "THERE'S A RAPIST IN OUR SCHOOL," is so inherently disturbing that anyone who reads it would appreciate that school discipline would be disrupted. In support of this interpretation, Defendants assert someone might believe an active rapist was presently "walking the halls of the school building." At this stage of the proceedings, suffice it to say it is unlikely that Defendants will persuade me to accept this interpretation as reasonable. Students who seek to sound the hue and cry regarding an imminent threat in the school building do not do so by sticky note.
Defendants also argue that the sticky note actually disrupted school, justifying the punishment they meted out on A.M…. To show students experienced "fear" at A.M.'s note, the School points first to the "worried and concerned" student who in fact found the sticky note in the bathroom. Then, when the Defendants investigated the rape allegation, they argue that "dissemination of the statement interrupted the work of administrators for multiple hours over many days, interrupted the school routines of the 47 students interviewed and spread fear in the student body," resulting in further disruption. In essence, the Defendants argue they are justified in punishing A.M. because her note caused certain students to feel temporarily upset or unsafe, and certain administrators to spend their time investigating her allegation. This is less "disruption" than the school in Tinker had forecast, and not enough to justify prohibiting otherwise protectable First Amendment activity….
In Tinker, the black armbands "caused comments, warnings by other students, the poking of fun at them … a warning by an older football player that other, nonprotesting students had better let them alone," and the "wreck[ing]" of a math teacher's lesson period, none of which amounted to enough "disruption" to silence otherwise protected speech. The cases Defendants cite to support their argument highlight that "disruption" usually refers to actual threats of harm or violence.
Here, by contrast, there is no evidence that A.M.'s note incited violent behavior … or even "wrecked" any part of the academic schedule. The Assistant Principal's characterization of certain students as concerned about the note, and testimony that administrators spent time investigating the note, does not add up to "disruption" under Tinker which would undermine Plaintiff's showing of likelihood of success at this preliminary stage….
[D.] Defendants also attempt to justify their punishment of A.M.'s speech because it invaded the rights of other students, specifically Student 1, the alleged target of the note. Defendants argue that "A.M.'s unfounded statement interfered with Student 1's reputational rights … and his right not to be bullied in school." … In describing [the invades-the-rights-of-others] justification, the Court in Tinker gave the example of a student who "accosted other students by pinning the buttons on them even though they did not ask for one." I consider here whether A.M. invaded another student's rights with a similar level of clarity and directness as the … student referenced in Tinker.
At this preliminary stage, the record on the issue is decidedly mixed. For example, Defendants state that Plaintiff "admi[tted] that she intended to instill fear in the school" by posting the note. A.M., on the other hand, contends that "it was Principal Shedd who alleged that I was trying to instill fear. I did not say that was my intent." A.M. also claims to have audio recordings of her meetings with administrators that refute Defendants' contention that she directed her note at Student 1. Without a clear factual connection between A.M.'s note and Student 1, I cannot find that her sticky note "invaded" Student 1's rights under Tinker. Therefore, Defendants' adjudication that A.M. bullied Student 1 does not undermine Plaintiff's showing of likelihood of success on her First Amendment claim.
Defendants also stress that A.M. "egregiously minimizes the trauma she caused to Student 1." I highlight that particular word to pause on a troublesome point of Defendants' argument; though Defendants hastily point out that A.M. was adjudicated to have "bullied" Student 1 under Cape Elizabeth High School's bullying policy, they do not closely link her protected speech to the actual harm he suffered…. A.M. posted a sticky note in the girl's bathroom that stayed up for a matter of minutes, did not specifically name an individual, did not use photos, and arguably targeted the administration—the "you" in the note—rather than the "rapist." Because the record does not speak with any clarity that A.M.'s note, in fact, caused reputational and educational harm to Student 1, I find that Defendants have failed to undermine Plaintiff's showing of likelihood of success on her First Amendment claim by pointing to this second Tinker justification.
E.] [An allegation of unlawful conduct is, generally speaking, not a worthy object of punishment unless the allegation is frivolous…. Defendants argue, however, that it is how one goes about it that matters here. They say Plaintiff did not channel her grievance through the proper channels. But Plaintiff has a right to express her viewpoint, and if her viewpoint is non-frivolous and is delivered by a means that will not likely cause a breakdown in school discipline or invade the rights of another student, then it is not deserving of punishment.
That does not mean the public is compelled to celebrate Plaintiff's expression. Indeed, the public remains free to reject Plaintiff's viewpoint. Nevertheless, the public has an interest in knowing that neither Plaintiff nor any other student who expresses a comparable view in similar fashion will be denied access to school simply because her viewpoint offends the sensibilities of school administrators. Something more is necessary to justify punishment.
If school administrators receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us? Contemporary examples abound of betrayal of free speech principles to avoid ideas or speakers with whom we disagree. Madison would recoil. Individual liberty is both the cause and the result of personal fortitude. "The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults." That ability, in turn, depends on the free flow of ideas, especially those that are discomfiting.
To my view, the concern over the ability of students to express outrage over something happening in the school community gives rise to the concern expressed by Justice Alito and seconded by Justice Kennedy in Morse, that there should be "no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue," based merely on concern over the school's ability to carry out is "educational mission." Such a formulation of the test invites school administrators to "inculcate[e] … whatever political and social views" they hold to the detriment of student expression.
There is some evidence that this may be going on here. Defendants have demonstrated a relatively intense desire to control messaging about the health of their high school environment and to demonstrate to the public at large that they have the matter well in hand. They have even gone so far as to state that A.M.'s concerns lack factual support, although it is not apparent on this record that A.M.'s concerns are in fact frivolous. {During the motion hearing, Defendants made the startling argument that it does not matter for purposes of the First Amendment analysis whether A.M.'s statement that "there's a rapist in our school" was true or false.}
In short, the right of the public to hear or read expression concerning the operation of the public schools and the existence of dangers within the school environment may, at times, depend on the right of members of the student body to express themselves in the school environment without fear of retribution. The public interest is, accordingly, in league with the Plaintiff insofar as she asks that the suspension be stayed pending further consideration of her free speech claim….
