This week was big for the First Amendment/Student Rights cases. We have decisions from the east and west coasts. Interestingly the court's decisions protect interests of students with political speech from both the political right and left. Since this is a NY Blawg, we will start in the US District Court of NY (N.D.N.Y.) In the interest of family life and in order to watch and fully enjoy the Duke v BC ACC championship game (and what a game it was), we will do this in two posts.
In Grzywna v. Schenectady City Schools 05-cv-0167 the plaintiff is a 12 year old middle school coed. To show her support of the troops in Iraq and to also commemorate the service there of four family members, she designed and produced a beaded necklace in Red White and Blue. Her school district told her to remove the necklace as it ran afoul of their anti-gang colors dress code. She refused they move to suspend her and Mom takes the case to federal court. (Way to go MOM!!)
Now the defendant school district files an FRCP 12(c) motion attacking the pleadings. They raise three points: 1)The district is entitled to 11th amendment immunity because it is an arm of the state; 2)The individual defendants (the school administrators) are entitled to qualified immunity because a)Plaintiff student has no first amendment rights or b)the wearing of a necklace conveys no particular message c)even if it does convey a message it is unlikely anyone will understand it; and 3) the school dress code policy is not overbroad.
The court handled the first objection very quickly, noting that the complaint must be very liberally construed and that it is not important on a rule 12(c) motion whether or not plaintiff will ultimately succeed but rather whether she can offer proof of her claim for a recognizable action. Put another way, does she have an action (she can prove)notwithstanding whether she would ultimately win or not.
Moving through the 11th amendment objection, the court followed the decision in Cohn v. New Paultz Central School District 363 F. Supp.2d 421 (N.D.N.Y. 2005)and held that it the school district is not immune.
Moving to the real gist of the case, the court addressed the issue of student free speech rights. Noting that a student does not get the full planoply of rights an adult gets (See Bethel School Dist. 403 v. Fraser 478 US 675 (1986)it also pointed out that kids as young as 13 have had a recognizable right to express themselves on matters of political interest.(See Tinker v. Des Moines independent Central School District 395 US 593 (1969). The court noted that the speech here was neither disruptive nor did it cause a disciplinary problem. Hence the question is not if the child has a free speech right, but whether the speech in question conveys a message and whether the message is readily discernible.
Moving onto that question, the court further bifurcated the former issue and asked, is the speech expressive conduct and does the district policy impermissible deny plaintiff of her First amendment protections. (Citing the Zalweska case (316 F3d 319) which sets out a two prong test that sets the lower limit for what constitutes expressive speech; a particularized message with a likelihood it will be understood by those viewing it. The court then went onto say that such speech in the context of a classroom also the Free Speech right had to be balanced by the equally important interest of the schools mission to further education.)
The court looked at the fact that the 12 year old told the district what her message in wearing the necklace was and the fact that it had a further meaning in terms of our nation's war position, when it decided that the conduct made out enough of a particularized statement to go on with the litigation.
Looking at the test's second prong the court noted that there was an objective consideration as to whether, under the circumstances in this case, the conduct would be understood by others to be about a particular message. Taking into consideration that our nation is engaged in a controversial war in Iraq and that these topics may be under discussion in current events classes and other places in the school the court help it could not rule out that others in the school would have understood the particular message.
As to the other two issues (whether the school infringed on plaintiff's first amendment protections and whether the district policy and the individual officials deserved qualified immunity)the court decided that the issues were too fact specific for the court to decide. Hence the court felt that a jury was better to determine whether district officials were aware of the message plaintiff was trying to communicate and thus whether their behaviors were actionable. As for the district policy, defendants didn't make it part of their submission, so the court didn't have it to analyze for the purposes of deciding if it was vague or overly broad.
In the interest of short posts I think it is best to post about part II of this thread in our next post hopefully tomorrow. Let's call this part The Rockets Red Glare. The next part is all about The Blaze.
By the way Hat tip to this post at our sister blawg That Lawyer Dude.