No Free Speech at Schools?

After re-reading the 5th Circuit Opinion, I wonder if the cheerleader may be the victim of poor lawyering. The district court dismissed her case for failure to state a claim -- a very early stage decision in which the court excepts accepts everything you have told it as true and evaluates whether those facts amount to a violation of law.

But I also think -- without having seen the original pleadings -- that the 5th Circuit opinion has some serious flaws. The opinion is very short and only deals with her First Amendment claim, which looks to be the strongest of her claims, in two paragraphs. Part of which reads:

The second part of that analysis is what disturbs me. There is no way that a single cheerleader standing in silent protest for one or two cheers out of an entire game is a "substantial interference with the work of the school".


http://www.ca5.uscourts.gov/opinions%5Cunpub%5C09/09-41075.0.wpd.pdf

 

It's just a legal term of art. Schools claim that their interest in suppressing speech is "substantial interference" with the educational process, and the courts almost automatically defer to the school's opinion on the matter.

 

No it's not a legal term of art. It's undefined. Legal terms of art have specific meaning.

 

OK, I'm probably butchering the vocabulary. But what I mean is that schools can say "substantial interference" with the educational process, and I think courts are pretty much obliged to defer to their judgment, even when it seems ridiculous (like here). And I know people have talked about the Tinker case and so forth that suggest otherwise, but that doesn't seem to be the law any longer.

It would be interesting to see this get to the Supreme Court, though, because that is the one court that could set a limit for "substantial interference" if they think schools are starting to abuse it. They can reel it back in, but I don't think the Court of Appeals can do that. However, I am quite certain if this case was in California or anywhere in the 9th Circuit, they would have felt more free to say that this wasn't "substantial interference" and challenge the Supreme Court to reverse them.

 

I remember being into this big-time in high school. We were all going to reverse the Hazelwood decision, by sheer force or our will.

I had no idea at the time how set in stone Supreme Court decisions were. But it is fun - and a little sad - to think back to how idealistic I was then.

 

Tinker really isn't good law anymore. We all love Tinker because it has some wonderful pro-free speech language. But it's really limited now in what it protects. The court has never said "We overturn Tinker." But, as you point out, from Hazelwood on down the holding in Tinker has been severely limited.

After the "Bong Hits 4 Jesus" case, I don't know that I want any school speech cases going before the current court. I fully expect that in the near future we'll see in front of the court one of these cases where a student is punished in school for something she wrote online, while at home. I'm terribly afraid of what this court will do with it.

 

Well, that's where witnesses would be needed, maybe if the game was videotaped or something like that. You're right, though, in terms of how hard it would be to prove it.

The school could argue that because he was being investigated for a violent crime, that they have a duty to make sure that their students are safe, even if they haven't gone to trial.

Where I went to college, there were a couple of violent incidents (with off-campus frats). The kids were suspended from school and not allowed on campus until the case was concluded. My school said that they had to provide a safe environment for students, and could not allowed accused violent people on campus.

 

Wonder if it might tip its hand about how it feels about free speech rights for kids with the video game case?

Also - it is my understanding that the Bong Hits 4 Jesus kid didn't even go to school that day? Which would seem to be a foundation to rule that online posts are unprotected.

 

The situation is a little different between high school and college because the state is required to provide a free and appropriate primary education but not a college one. They can still remove a high school kid from the regular school, but they have to provide an alternative if they do so. Your college didn't have to do that.

The accused in this case were held out of regular school from the time of the arrest (October 2008) until the first grand jury refused to indict (January 2009) and they were removed from the football team. Once the grand jury refused to indict in, they were allowed back in school and back into sports. The actual indictment didn't come for another 8 months and this incident was in that ensuing period.

The school could have held them out of sports after their return under several justifications, including that they had missed tryouts/the start of practice.

 

This is all bullshit to me. A girl gets raped, is facing her rapist everyday in school and then gets ostracized by her community because of it.

I was going to post something trying to rationalize the legal decision but screw it. There's a bunch of people who have some serious bad karma coming their way.