BY HANK REICHMAN
Two recent U.S. appellate court rulings, from the U.S Courts of Appeal for the Ninth and Fourth Circuits, mark victories for the free speech rights of striking teachers and of students.
In the Ninth Circuit case, Eagle Point Education Association/SOBC/OEA; Dave Carrell; Staci Boyer v. Jackson County School District No. 9, decided on January 26, the court affirmed a district court’s summary judgment and attorney’s fee award in favor of teacher and student plaintiffs who had challenged the policies of an Oregon public school which prohibited, among other things, picketing on school district property, and prohibited strikers from coming onto school grounds, even for reasons unrelated to an anticipated teachers’ strike. The panel rejected the school district’s assertion that the policies enacted by the district during a teacher’s strike should be viewed as “government speech” by the school district itself and therefore should not be judged as restrictions on the free speech rights of teachers or students. Determining that the policies were neither reasonable nor viewpoint neutral, the court held that they failed even the non-public forum test. The policies therefore violated plaintiffs’ First Amendment rights.
In the Fourth Circuit case, decided on March 15, the court ruled that South Carolina’s “disturbing schools” law posed a substantial risk to student freedom of expression and due process and that plaintiffs in the case of Kennyv. Wilson deserve their day in court. The law allows children to be arrested and prosecuted for any behavior a school deems “obnoxious,” such as failing to follow a teacher’s instruction or cursing at lunch time. The ACLU and the ACLU of South Carolina filed suit in 2016 on behalf of Niya Kenny and other student plaintiffs. At Spring Valley High School in Columbia, Kenny was arrested and taken to a detention center because she had cried out after seeing a school resource officer pick up a classmate and throw her to the ground.
Turning first to the Oregon case, in May 2012 the Eagle Point Education Association, a union representing teachers and staff in Jackson County School District No. 9, went on strike. “In anticipation of that strike,” the Ninth Circuit panel wrote,
the District adopted two resolutions on May 2, 2012. One of those resolutions, identified as the Resolution on Picketing, provided that “[n]o picketing will be allowed on any district property or facilities owned or leased by the District” and that “[p]icketers are prohibited from entering school facilities for any reason whatsoever.” The policy was not limited to property used specifically for instructional purposes. At about the same time, the District entered into a three-month lease for a vacant lot across the street from school district headquarters that had been used by the Union in the past for organizing. After renting the lot, the District notified the Union that it could not use that lot.
The other resolution, the Resolution on Signs and Banners, provided that “[s]igns and banners will not be allowed in or upon buildings and other facilities unless written approval of the Superintendent is obtained in advance.” By its terms, it was not limited to locations used for instruction either, but applied to “any and all other facilities owned or leased by the District.”
The strike began on May 8, 2012. On May 11, Staci Boyer, then a high school senior and a plaintiff in the case, drove into the school parking lot with a sign on her rear windshield stating “I Support D9 Teachers.” She was barred by a security guard from parking in the lot, an assistant principal later explaining that signs supporting teachers or “protesting” were forbidden. After another student posted a picture of her pet on Facebook, with a sign reading “Strike Dog,” the principal, identifying the student by name, declared that she, along with three others, who “have posted negativity on Facebook” should be “inform[ed] . . . that they are not coming to school on Monday.”
After the strike ended the District rescinded the resolutions and returned to its prior policies regulating use of school ground. The union and the named plaintiffs filed suit on May 12, 2012 and the District Court granted summary judgement in their favor. The School District appealed and in its January ruling a three-judge panel of the Ninth Circuit denied further review. Here are some excerpts from that decision:
The primary argument presented by the District is that its policies were a form of government speech. If the policies were government speech, then they would not be subject to the Free Speech Clause. . . . On the other hand, if the policies were instead regulatory policies restricting private speech on government property, then the Free Speech Clause would apply and the policies would be subject to a “forum analysis.” . . .
The District’s argument stretches the government speech doctrine beyond logical bounds, however. The District was entitled to make its own position known, and it did, but the doctrine did not give the District leave to suppress speech by others. . . .
Indeed, the District has not actually argued that anyone would have misunderstood Plaintiffs’ pro-strike message as a statement by the District. The most that the District argues is that it would have sent “a garbled message to parents and taxpayers by allowing the striking teachers access to school property to picket, chant, and display . . . signs and banners denouncing the District’s official policy. Reasonable observers would have doubted the resolve of the School District and suspected that administrators of particular schools were allowing the picketers access [to] school property because they themselves openly or covertly disagreed with the District’s collective bargaining position.”
None of that supports treating the enforcement of the District policies here as government speech. The answer to the concern that observers might doubt the resolve of the District is found in the First Amendment itself. It protects the expression of views that disagree with the government. Even “high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so.” The District’s position would authorize any government to block the expression of views on government property that did not match the government’s own favored position, out of fear that the government’s “resolve” might be questioned. The government speech doctrine has not so swallowed the First Amendment. . . .
It has long been established that teachers and students have First Amendment rights. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Plaintiffs contend that the District violated their First Amendment rights. . . .
The district court assumed that the property covered by the District policies was a non-public forum, where the government has the greatest authority to restrict speech. Because it concluded that the District policies violated the First Amendment even under the non-public forum standard, it did not need to determine which forum standard applied. We follow the same approach and also assume that the locations covered by the District policies were non-public fora.
Speech in a non-public forum can be restricted, but the restrictions must be (1) “reasonable” and (2) “not an effort to suppress expression merely because public officials oppose the speaker’s view.” . . .
The district court concluded that the District policies were not reasonable. Although the District argues that its action was required to keep the schools operating normally, it does not directly challenge the district court’s determination that there was no evidence that the policies were actually needed to prevent disruption. Notably, the district court concluded that “school administrators had no indication of potential violence, disruption, or other potential harm to students or teachers or members of the public, which might have justified their actions.” The District did not demonstrate that school officials actually “anticipated that signs or banners would cause substantial disruption of or material interference with school activities.” The District failed to show “how signs and banners would have a harmful impact on actual operation of the schools [or] how the blanket ban would alleviate such harms.” And, the district court concluded, “the restrictions in the Picketing Resolution and the Check-Out Notification Letter have nothing to do with education of students. For instance, restrictions are not based on a certain time of day when picketing would disturb classes, or certain areas of school property that would be out of sight for students or otherwise less distracting.”
Our review of the record leads us to the same conclusions. The District did not submit evidence sufficient, even by the standards applicable to summary judgment, to justify its sweeping prohibitions. “[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” . . .
The District does not defend the action of its security officer in barring Plaintiff Boyer, at the time a student in the District high school, from the school parking lot because she had a sign on the back windshield of her car that stated “I Support D9 Teachers.” It acknowledges that, as a student, Boyer had a right to be on school property and also had a right to express her opinions in a non-disruptive manner. The District does not contend that her sign was disruptive.
Instead, the District attempts to avoid responsibility for the violation of her rights by arguing that the restriction imposed on Boyer was not an application of the District policies. Specifically, it contends that Boyer was a victim of the security guard’s own decision, not of the Resolution on Signs and Banners. That argument is not persuasive.
There is no suggestion that the security officer would have taken any action but for the adoption and enforcement of the policies. The policies might not have clearly spelled out how far the prohibition on signs extended, but the application of the Resolution on Signs and Banners by the security guard was by no means an implausible interpretation. Though the District argues that the policy by its terms applied only “in or upon buildings and other facilities” of the District, not to the parking lot, the District itself broadly extended the reach of its prohibitions to the vacant lot across from its offices. It was not illogical for the security officer similarly to treat the parking lot as a school “facility.” Moreover, at the time of the incident, the high school’s assistant principal did not tell Boyer that the guard had made a mistake. He told her that signs supporting teachers or “protesting” were forbidden.
As a result, the District was properly held liable because “implementation of its official policies or established customs inflict[ed] the constitutional injury.” . . .
To be clear, we do not hold that a public school district or any other governmental unit is precluded from taking any action to continue operations during a strike or from imposing reasonable, viewpoint-neutral restrictions generally on access and expressive activities in a non-public forum. But restrictions on free speech rights cannot be aimed at stifling expressions of dissent, even where—indeed, especially where—such restrictions are intended to show the government’s resolve.
In the Fourth Circuit case the appellate court reversed the district court’s decision to dismiss the suit for lack of standing. The lower court had “reasoned that plaintiffs’ fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact.” But, the Fourth Circuit panel concluded,
at least some of the named plaintiffs do not rely on conjecture or speculation, but rather, on the fact that they attend school where they were previously arrested and criminally charged under the two South Carolina statutes, and they don’t know which of their actions at school will be interpreted to violate the statutes in the future. Further, plaintiffs allege that the two laws chill their exercise of free expression, forcing them to refrain from exercising their constitutional rights or to do so at the risk of arrest and prosecution. In our view, that is sufficient to plead both a future and ongoing injury in fact.
There are four named plaintiffs in the case, minors D.S. and S.P., Niya Kenny, and Taurean Nesmith. According to the opinion,
D.S. and S.P are high school students. D.S. (who is black and has learning disabilities) was charged with violating the Disturbing Schools Law “after becoming involved in a physical altercation which she did not initiate and in which she was the only person who sustained an injury, a lump on her head.” S.P. (who is white and suffers from mood and conduct disabilities) was charged with violating the Disorderly Conduct Law after she cursed at a student who had been teasing her and refused to leave the library with the principal as instructed.
Kenny and Nesmith are young adults who were previously arrested and charged with violating the Disturbing Schools Law when they expressed concerns about police conduct. When Kenny (who is black) was in high school, she saw a school resource officer pull a female student from her desk, drag her on the floor, and handcuff her. Kenny “attempted to document the incident and called out for someone to do something to stop the violent treatment of her classmate.” In response, Kenny was arrested and charged with violating the Disturbing Schools Law. The experience left Kenny scared and humiliated, and she withdrew from high school. She later obtained her G.E.D.
Nesmith (who is also black) attends Benedict College. He alleges that a campus police officer arrested him on suspicion of violating both statutes after he complained that the officer was engaged in racial profiling and questioned the officer’s request that he produce identification. . . .
. . . plaintiffs challenge the Disturbing Schools Law as unconstitutionally vague on its face and, second, D.S. and S.P. also challenge the Disorderly Conduct Law as unconstitutionally vague as applied to elementary and secondary public school students in South Carolina. Both claims allege (in sum and substance) that the statutes violate plaintiffs’ right to due process under the Fourteenth Amendment because they fail to provide sufficient notice of prohibited conduct and encourage arbitrary and discriminatory enforcement.
Plaintiffs claim that both statutes criminalize behavior that is indistinguishable from typical juvenile behavior, which schools address on a daily basis without resorting to the criminal justice system. For example, students, including some as young as seven, have been charged under the statutes for cursing, refusing to follow directions, or getting in a physical altercation that doesn’t result in any injuries. The complaint further alleges that some students are arrested and charged simply for expressing concerns about police conduct.
According to plaintiffs, criminal charges under the two statutes are among the leading reasons young people enter the juvenile justice system in South Carolina. Between 2010 and 2016, over 9,500 young people throughout the state were referred to the Department of Juvenile Justice under the Disturbing Schools Law, a statistic that excludes those students seventeen and older who are charged and prosecuted as adults.
Plaintiffs also allege that students arrested for violating the statutes are less likely to graduate and more likely to feel stigmatized and afraid, making it difficult to engage in the classroom. When a student’s behavior is characterized as “criminal,” the school is likely to impose a harsher punishment, diminishing the student’s educational opportunities through expulsion, suspension, or placement in alternative settings that do not offer coursework necessary to graduate.
Plaintiffs claim that the statutes are enforced in a discriminatory manner, leaving racial minorities and students with disabilities especially vulnerable. In 2014-2015 black students in South Carolina were nearly four times as likely to be charged under the Disturbing Schools Law compared to their white classmates. In Charleston County, a charge under the Disturbing Schools Law was the number one reason young people entered the juvenile justice system and black students were more than six times as likely to be charged for the offense compared to white students. Plaintiffs allege that such racial disparities in discipline cannot be explained by differences in behavior among students of different races. . . .
We find that S.P. and D.S. face a credible threat of future arrest or prosecution under the Disturbing Schools Law and Disorderly Conduct Law, and that Nesmith faces a credible threat of arrest or prosecution under the Disturbing Schools Law because these three plaintiffs regularly attend schools where they allege there may be future encounters with school resource officers or other law enforcement; they have been prosecuted under the laws in the past; and the defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future. Further, plaintiffs allege that black students and students with disabilities are more likely to be criminally charged with violating the statutes. S.P is disabled, Nesmith is black, and D.S. is both disabled and black. Thus, the threat of enforcement is particularly credible with respect to these three plaintiffs.
Moreover, the presumption of a credible threat applies. Plaintiffs plausibly allege that the two statutes are regularly enforced against students like S.P., D.S., and Nesmith; they restrict students’ expressive activity, including anything perceived as “disturbing,” “obnoxious,” “disorderly,” or “boisterous”; and they tend to chill students’ engagement in the classroom as well as their ability to speak out against police and participate in conversations about policing. As a result, we may presume that, as students in South Carolina, S.P., D.S., and Nesmith face a credible threat of prosecution. . . .
Tinker held that a school district could not punish students for wearing black armbands to school in protest of the Vietnam War because there was no “material interference” with school activities. The Tinker Court explained that “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” . . .
Unlike the school regulation in Tinker . . . the Disturbing Schools Law is a criminal law that applies to all people who in “any way or in any place” willfully or unnecessarily disturb students or teachers of any school or college. . . . We note also that both In re Amir and Tinker are cases addressing overbreadth challenges; neither consider the separate question of whether a statute’s prohibitions are unconstitutionally vague and allow for arbitrary or discriminatory enforcement. In short, we do not think these cases foreclose the plaintiffs’ claims here.
Finally, defendants say that plaintiffs fail to allege an intent to engage in a specific course of conduct proscribed by the statutes. But it is precisely because the statutes are so vague that plaintiffs can’t be more specific. Plaintiffs allege that they can be criminally prosecuted for just about any minor perceived infraction and that they can’t predict the type of conduct that will lead to an arrest.
In any event, plaintiffs don’t need to allege a specific intent to violate the statutes for purposes of standing. . . .
“The court has sent a clear message,” said Sarah Hinger, a staff attorney with the ACLU’s Racial Justice Program. “Rather than funnel children into the criminal justice system over minutiae and lawful activities, schools must recognize and protect students’ rights. This message is particularly important in this time of student activism. . . . In its ruling, the court recognized the law’s discriminatory impact, finding that ‘the threat of enforcement is particularly credible’ for plaintiffs who are Black, and for those who have disabilities.”
