Despite reversal, Vero Beach High School still in violation of the First Amendment – Pacific Legal Foundation (PLF) (press release) (blog)

Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High Schools decision to disqualify PLF client, J.P. Krause, from the race for senior class president. After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principals decisions regarding disqualifying candidates from the election, and will accept the original election results, the Superintendent said Tuesday afternoon.

While this is a win for our clientand the voters of Vero Beach High Schoolit doesnt go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary recordthe allegation that he harassed his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

JPs speech in classand his subsequent punishment are directly related. It should be clear to any observer that JPs speech was political satire-speech that is protected by the First Amendment. The First Amendment wasnt designed to protect feelings, but to prevent the government from censoring views that it disagrees with. Thats just what happened here. The Districts harassment policy has been used to punish JP for his speecha speech that the school disagreed with. While under certain circumstances schools have the right to censor student speech, thats not the case here. Courts have ruled that school policies that go too far to censor speech are unconstitutional.

The policys broad ban on verbal conduct is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school districts harassment policy as overbroad, holding that even speech that is defined as harassing may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the schools harassment policy improperly swept in those simple acts of teasing and name-calling that had previously been held to be protected by the First Amendment. The policys language in that case barred speech that has the purpose or effect of interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. Judge Alito explained that even if the speech created a hostile environment that intrudes upon . . . the rights of other students, it is not enough that the speech is merely offensive to some listener, because there is no categorical harassment exception to the First Amendments Free Speech Clause.

The schools harassment policylike the one at issue herehad no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar core political and religious speech (like J.P.s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a students First Amendment rights.

Likewise here, the school has used this harassment policy for a problem that doesnt exist. Much like a square peg doesnt fit in a round hole, the arbitrary use of a school district harassment policy to punish a student for constitutionally protected speech is wrong, misguided, and sends a message to other students that their speech might be censored as well. This creates a chilling effect on campus, stifling student speech. Students should be free to learn and discuss ideas, especially ideas of public importance, absent fear of school censorship. The punishment of JPs speech has illustrated that the school is not committed to training its students to meet the challengesof adulthood and has sent a message to other students that their speech might be arbitrarily censored too.

The loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In other words, it doesnt matter that the school district reinstated JP. It still gave him detention and wrongly left the charge on his record that he harassed another student. He didnt. Accordingly, the threat that it will punish him in the future for similar speech is still there. Until he is ensured that he wont be punished for political satire, his speech rights are being harmed irreparably, which is why PLF wont stop until JPs rights are fully restored.

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Despite reversal, Vero Beach High School still in violation of the First Amendment - Pacific Legal Foundation (PLF) (press release) (blog)