You Be the Judge
Bench Memo
_____________________________________
A. Fine and Joe
Plumber
Plaintiffs,
vs. Civ.
No. 009-001
The Board of
Education of High Technology
School District
and Vera Strict
Defendants.
______________________________________
To: The Honorable Members of the Marquis Courtyard
From: Courtney Clerk
Re: A, Fine & J. Plumber vs. the Board of Education of
the High Technology School District and Vera Strict
BENCH
MEMORANDUM
FACTS:
It was a tense time at High Tech High. Given the District’s encouragement of open debate and discussion about current events and the presidential election, the student body had become highly polarized. Prior to the election, debates were heated but never disruptive nor threatening. After the election, however, a group called Young Americans for Freedom (YAF) started an e-mail campaign against the newly elected president. Frustrated and angry about Obama’s victory, they decided to launch a protest in school on Inauguration Day. Joe Plumber, the president of the club, began organizing the event from his home computer to encourage his fellow club members to wear T-shirts, which he was making with the art director, Art Fine, at an after school art program at the YMCA, to protest Obama’s Inauguration. Notably, Art Fine is also the art teacher at High Tech High.
Word gets around to several YAF members and other students at High Tech who decide to join the protest. Meanwhile Tate L. Tale, the president of Students for Democracy, overhears a conversation between another YAF member and Joe, talking about the planned protest and showing off the T-shirt he and Mr. Fine designed together at the Y. With a cell phone in his pocket, Tate L. Tale quickly pulls it out and takes a picture of the T-shirt. The T-shirt has a picture of Obama and Karl Marx embracing on the front; on the back, a replica of the picture featured on the cover of New Yorker Magazine of Obama and his wife, Michelle, dressed in radical Islamic garb holding a gun. In large letters on the front and back, the T- shirt reads “Do you know who your next President is?” Among other school rules, the District prohibits weapons, the use of cell phones and any clothing that promotes violence.
Just days before the planned event, Tale shares the picture of the T-shirt with the high school principal, Vera Strict, and tells her all he overheard about Mr Fine, the T-shirt and the planned protest. Ms. Strict, who had just met with the Student Islamic Society and African American Student Group is extremely sensitive to its members very strong feelings about what they perceive to be anti- Islamic, and anti-African American messages circulating around the school.
Extremely
concerned that the protest could lead to disruption and that allowing students
to wear T- shirts in school that could offend others, on Inauguration Day Ms.
Strict instructs her staff to search every student – checking under their
shirts, their backpacks and/or purses before they are allowed to proceed to
class. After an hour, when nothing
suspicious is found , Ms. Strict calls off the search and
directs all students and teachers to report to their second period class. Somewhat humiliated, Ms. Strict
(1) suspends Joe, the president of
YAF for organizing the protest and bringing a T- shirt to school that promotes
violence; (2) suspends Tate L.
Tale for bringing a cell phone to
school in violation of school rules; and (3) brings charges against Art Fine,
the art teacher, for conduct unbecoming a teacher.
Positions of the Parties:
The ACLU takes on the cause of Art Fine and Joe Plumber arguing that their actions constitute protected speech under the First Amendment to the United States Constitution
The ACLU argues, on behalf of Joe that he was exercising his First Amendment rights, that the gun on the T- shirt he brought to school to show his friends was used as a parody and was not intended to promote violence, and that in any event his organizing efforts all occurred off school grounds. To the extent there was any disruption in school, Joe did not cause it and, in fact, called the whole thing off in fear that it could hurt his chances of getting into his first choice Ivy League college.
Regarding Art Fine, the ACLU argues that his actions are also protected by the First Amendment and that, in any event, he was not in the employ of the school or on school grounds when he helped Joe make the T- shirt. Mr. Fine admits that he was aware of the planned protest at school.
The District argues that under Supreme Court precedents it has broad discretion to regulate student speech particularly where it is reasonable to believe that it would have resulted in disruption and created a hostile school environment. Regarding the image of the Obamas with a gun, the District urges that the image is not only hostile and therefore not protected it promotes violence in contravention of the District’s policy.
Regarding its actions against the teacher, the District claims that as an employee of the district, the teacher had an obligation to report to the administration what he knew. Instead, by helping the student design the offensive T-shirt, he aided and abetted him in launching an illegal protest. Consequently, the teacher’s speech is entitled to no more protection, under the facts of this case, than the student’s.
The Court certifies the following issues on appeal:
Whether Joe’s suspension for planning a protest that he organized off school grounds that resulted in a disruption to the normal school day violated his First Amendment rights?
Whether bringing Mr. Fine, the art teacher who works at the High Tech High, up on disciplinary charges for helping Joe design T-shirts at an after school YMCA art program which he knew would be worn by students for a planned protest on school grounds violated his First Amendment rights?
Relevant Law
Congress
shall make no law ... abridging the freedom of speech, or the press, or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
First
Amendment, United States Constitution.
Student
Free Speech Generally
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0393_0503_ZS.html
The United States Supreme Court ruled that students are entitled to First Amendment free speech protections even within the walls of the school house subject to reasonable time, place and manner restrictions. In addition, the Court held that student free speech protections do not extend to speech which would materially and substantially disrupt the educational process of the school environment or would impinge on the rights of others. In this case, three students were suspended for wearing black armbands to symbolize and publicize their objections to the Vietnam War. The Court determined that their suspensions were unconstitutional.
Vulgar,
Lewd and Indecent Speech Not Protected
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0478_0675_ZS.html
The United States Supreme Court upheld the suspension of a high school senior who gave a nominating speech at a school assembly laced with sexual innuendo. The Court distinguished this case from Tinker holding that the school district acted within its authority to respond to the use of vulgar or indecent speech in a school sponsored activity.
School Sponsored Student Publications
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0484_0260_ZS.html
The United States Supreme Court ruled that school officials did not violate the free speech rights of students by removing materials deemed objectionable from a school-sponsored newspaper for legitimate educational reasons. In so ruling, the Court limited its earlier ruling in Tinker to situations involving the regulation of a student's "personal expression" which occurs on school premises and held that the substantial disruption standard did not apply to school-sponsored activities.
Library Book Censorship
Island Trees UFSD v. Pico, 457 U.S. 853 (1982).
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0457_0853_ZS.html
Local school boards may not remove books from library shelves simply because they dislike the ideas expressed in them and seek their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion. If the board's intent in removing the books was to deny students “access to ideas” with which they disagreed, and if the intent was the “decisive factor” in making their decision, it violated the United States Constitution.
Morse
v. Frederick, 127 S. Ct. 2618 (2007).
http://supct.law.cornell.edu/supct/html/06-278.ZC.html
The U.S. Supreme Court ruled that public school officials may restrict student speech at a school event when the speech is reasonably viewed as promoting illegal drug use. On the day the Olympic Torch was passing by Juneau Douglas High School in Alaska, the Administration released students and teachers to watch. The event was both school-sanctioned and supervised, but not mandatory. The Student, Joe Frederick and others, who did not attend school that day arrived in time for the event and held up a banner across the street from the school that read "Bong Hits 4 Jesus." Running across the street, the school principal directed them to take down it down, confiscated it, and suspended the student. The student filed a complaint in federal court claiming that the suspension violated his First Amendment rights.
Reversing the decision below that ruled for the student, the Supreme Court found that the message on the banner did not constitute protected speech and endorsed the principal’s position that it sent a pro-drug message as "plainly a reasonable one."
In reaching its decision the Court distilled two basic principles from it prior precedents in Tinker, Fraser and Hazelwood. In accordance with those precedents, the Court concluded that students' free speech rights must be construed "in light of the special characteristics of the school environment" and that "the mode of analysis set forth in Tinker is not absolute" or "the only basis for restricting student speech." Relying on its precedents, the Court found a legitimate governmental interest that justified restrictions on student expression that could reasonably be viewed as promoting illegal drug use. In ruling for the District, the Court rejected the District's argument that the speech was "proscribable because it is plainly 'offensive'” as the term was used in Fraser.
Threats of Harm - Not
Protected
Wisniewski v. Bd. of
Educ. of Weedsport CSD, 494 F.3d 34
(2d Cir. 2007).
http://www.statecourtwatch.org/hypo/wisniewski.pdf
The United States Court of Appeals for the Second Circuit concluded that a district’s suspension of a student for making a death threat against a teacher with an icon of him being shot in the head which he made on his home computer and shared with other students did not violate his First Amendment rights. The teacher, who learned about the message from other students, advised the school administration.
In ruling for the District the Court cited the Supreme Court’s decision in Morse explaining that
Although some courts have assessed a student's statements concerning the killing of a school official or a fellow student against the 'true threat' standard... we think that school officials have significantly broader authority to sanction student speech... With respect to school officials' authority to discipline a student's expression reasonably understood as urging violent conduct, we think the appropriate First Amendment standard is the one set forth by the Supreme Court in Tinker.
The Court went further, stating that even if the statement could be viewed as an expression of opinion within the meaning of Tinker, the icon crossed the boundary of protected speech and constitutes conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities……. [and] would 'materially and substantially disrupt the work and discipline of the school.'" Relying, in part, on the Supreme Court’s decision in Morse, the Second Circuit declined to consider the relevance, if any, of the fact that the student’s actions had occurred off campus.
Cyberspace Message that is
Neither Lewd, Disruptive nor Threatening Harm is Protected
Layshock
v. Hermitage School District, 496 F.Supp.2d
587 (2007).
http://www.statecourtwatch.org/hypo/layshock.pdf
A federal district court in Pennsylvania ruled that a student’s rights were violated when he was suspended for posting from his grandmother’s computer on my space.com, satirical material about the school principal that presented him as an alcoholic who used marijuana.
Ruling for the student, the court held that the fact that an internet message can be accessed at school does not authorize school officials to become censors of the world-wide web. According to the Court,
[i]t is clear that the test for school authority is not geographical. The reach of school administrators are not strictly limited to the school’s physical property. . . . However, school districts do not have inherent power to implement policies in the name of school safety.
Citing to Supreme Court precedents on student speech, the court opined that school officials are not provided with “unfettered latitude to censor student speech under the rubric of ‘interference with the educational mission’ because the term can be easily manipulated.”
Finding no evidence that the student engaged in lewd or profane speech while in school, the Court concluded that the Fraser test did not justify the district’s disciplinary actions. In addition, the Court found Tinker’s material disruption standard inapplicable.
Student’s
Otherwise Censored Message Contained in a Political Message is Protected
Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006).
http://www.statecourtwatch.org/hypo/guiles.pdf
Decided before the Morse decision, the United States Court of Appeals for the Second Circuit found that a district violated a student’s free speech rights when it suspended him for wearing to school a T-shirt with images depicting the now former President Bush as a chicken-hawk president and former alcohol and cocaine abuser. In response to a complaint from a parent, the student was ordered either to turn the shirt inside-out, tape over any drug and alcohol image including the word cocaine, or change his shirt. District administrators defended their actions on grounds that since the T shirt depicted drug and alcohol use it violated the District’s school dress code that prohibited clothing displaying alcohol, drugs, violence, obscenity, or racism.
Reversing the decision of the lower court that found for the District the Second Circuit found the censored images to be part of a political message and concluded that absent evidence of disruption, school officials had violated the student’s free speech rights.
In
issuing its ruling, the court distinguished the Supreme Court’s decision in Fraser finding the censored images, on their own, were not
lewd, vulgar, or indecent. In so ruling, the court in Guiles expressly rejected the argument that schools have
broad discretion to prohibit speech it finds inconsistent with its basic
educational mission particularly where the overall message is political.
Student’s
Free Speech Claim Recognized after School Confiscates Jewelry Alleging it was
Gang Related
Grzywna
v. Schenectady City School District, 489 F.Supp. 2d 139, 2006 WL 659512
(N.D.N.Y, 2006).
http://www.statecourtwatch.org/hypo/grzywna.pdf
A federal court ruled that a school district violated a student’s free speech rights when it acted to preclude her from wearing certain clothing or jewelry, which the district’s policy construed as gang related under its dress code without demonstrating that it actually was.
In ruling for the student, the court held that where the district had not presented evidence that by wearing the necklace the student’s actions caused disruption and the student claimed that it was an expression of her support for her country, members of its armed forces, and family members serving in Iraq, her claims could not be automatically dismissed. In declining to dismiss claims against individual faculty members, the court ruled that it was unable to determine whether the administrators could have reasonably believed that they were not infringing upon the student’s freedoms.
Student Cell
Phone Ban Upheld
Price v. New York City Board of Education, 51 A.D.3d 277 (2008)
http://www.statecourtwatch.org/hypo/price.pdf
A state appellate court held that implementation of a board policy banning student’s from having cell phones in New York City schools was within its authority.
Regarding the parents’ claim that the ban interfered with their constitutional rights as parents, the court held that a state cannot substitute its judgment for that of parents regarding decisions having a “profound effect” on a child’s upbringing. Finding that the ban on cell phones did not constitute such a case, the court rejected the parents’ argument.
Teacher Free
Speech
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).
http://supct.law.cornell.edu/supct/html/04-473.ZS.html
Rejecting the argument of a deputy district attorney, who alleged that he was demoted and mistreated for writing a memo to his superior accusing sheriff deputies of lying, the Supreme Court ruled that the controlling factor in deciding whether a public employee’s speech is protected, depends on whether the expression was made pursuant to the employee’s professional duties. In so ruling, the Court concluded that
[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen… [but] simply reflects the employer’s proper exercise of control over what the employer itself has commissioned or created.
Acknowledging that that there remains questions of whether expression "related to academic scholarship or classroom instruction implicates additional constitutional interests that were not addressed in the Court’s customary employee-speech jurisprudence," the Court signaled that its decision did not reach questions involving claims of academic freedom. In all other cases, the Court’s ruling made unequivocal that the Constitution does not interfere with employer discipline and consequently there are no First Amendment protections.
Connick v. Myers, 461 U.S. 138 (1983).
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0461_0138_ZS.html
To determine whether an employee’s speech is protected, the speech involved must be made by the employee as a citizen on a matter of public concern. To make that determination the speech in question must then be considered in light of its content, form and context. As long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
Pickering v. Bd. of Ed., 391 U.S. 563 (1968).
http://supreme.justia.com/us/391/563/case.html
In a case where an employee asserts that the speech which resulted in an adverse action by his employer was constitutionally protected, the court must consider whether the speech relates to matters of public concern, whether the employee suffered adverse employment action as a result and whether the speech was a motivating factor in the employer’s action.
Speech is only considered to be of public concern if it relates to matters of political, social or other concern to the community. Even in cases of protected speech however, a district may still prevail where it establishes that it would have taken the same adverse action regardless of the speech or where the employee’s interest in free speech is outweighed by the employer’s interest in avoiding disruption.
Panse v. Eastwood, 2008
WL 5273349(2dCir 2008).
http://www.statecourtwatch.org/hypo/panse.pdf
An art teacher suspended for 15 days for recruiting, soliciting, and/or otherwise encouraging his students to "participate in a for-profit course [he] was intending to teach, off school grounds, which was to include ... the drawing and sketching of male and female nude models sought damages against the District, BOE president, District's counsel and the Superintendent for alleged violations of his Constitutional rights under the 1st and 14th Amendment.
Finding that his “speech” which he offered during class to his students as a suggestion to expand their portfolios and consequently enhance their opportunities to gain college admissions was made pursuant to his duties of a teacher, the Court of Appeals dismissed his claim as not constitutionally protected.
Woodlock
v. Orange Ulster B.O.C.E.S., 281 Fed.Appx.
66, 2008 WL 2415726 (2d Cir. 2008).
http://www.statecourtwatch.org/hypo/woodlock.pdf
The U.S. Court of Appeals for the Second Circuit dismissed a counselor’ complaint that her termination in retaliation for complaining to her superiors about the lack of services to students in the BOCES violated her Constitutional right to free speech. In dismissing her complaint, the Court ruled that the speech of a public employee is only protected when the employee speaks “as a citizen on a matter of public concern” as opposed to speech which is made in the employee’s official duties. Relying on the Supreme Court’s decision in Garcetti, the court found that even assuming that the counselor was terminated in response to her complaint, her speech was not protected.
Weintraub v. Board of Educ. of City of New York, 489 F.Supp.2d 209 (E.D.N.Y. 2007).
http://www.statecourtwatch.org/hypo/weintraub.pdf
Finding
a teacher’s speech not protected, the Court dismissed his complaint alleging
that his termination was in retaliation for his complaints to about the
assistant principal, his discussion with other teachers and his filing of a
grievance on the assistant principal’s handling of the student’s discipline.
Although the court initially found the teacher’s complaints protected speech under the First Amendment because they involved matters of public concern (school safety) the court agreed to reconsider and reversed its decision following the Supreme Court’s ruling in Garcetti. According to its post- Garcetti decision, the court recognized that when an employee complains or expresses concerns to a supervisor or does so pursuant to a “clear duty” imposed either by law or in response to an employer’s policy” even if the complaint addresses issues of public concern, the employee’s “speech” is not protected because it was made through official channels. In contrast, the court noted that where an employee complains outside of “established institutional channels” the employee is deemed to be speaking as a private citizen and the speech is protected. Recognizing, however, that the teacher’s conversations with coworkers about school safety and the assistant’s principal’s handling of a student disciplinary matter, as opposed to his confrontation with the assistant principal and his formal grievance, was protected, the court recognized the teacher’s right to pursue his constitutional claim, based solely on retaliation with respect to his private conversations with his colleagues.
Perhaps most compelling is the court’s commentary on the impact of the Garcetti ruling on cases such as this “which deprive a public employee of a federal constitutional remedy for his employer’s alleged bad faith retaliation for statements that were neither incompetent nor insubordinate, but rather identified legitimate issues regarding the safe and effective operation of the public school system.”
Caruso v. Massapequa
UFSD, 478 F.Supp.2d 377 (E.D.N.Y. 2007).
http://www.statecourtwatch.org/hypo/caruso.pdf
Denying the District’s request to dismiss the complaint of a probationary teacher who claimed that her forced resignation to avoid termination violated her First Amendment rights, the court ruled that her allegations that her forced resignation was in retaliation for her party affiliation and her posting in her classroom of a picture of George Bush, the court concluded that it could not decide whether the Garcetti precedent was applicable without a trial to determine the nature of the teacher’s duties, the nature of the speech at issue and the context in which the speech was delivered.
Mayer v. Monroe County Cnty. Sch. Corp.,
474 F.3d 477 (7th Cir. Jan. 24, 2007).
http://caselaw.lp.findlaw.com/data2/circs/7th/061993p.pdf
In a brief decision the U.S. Court of Appeals for the Seventh Circuit ruled that prohibiting a public school teacher from expressing her opinion on the war in Iraq during instruction did not violate her First Amendment rights to free speech. Regarding her allegation that the Supreme Court’s decision in Garcetti did not apply because her claims raised issues involving academic freedom, the Court concluded otherwise on the basis that the teacher’s remarks to her students in the classroom were within the scope of her instructional duties.