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Saturday, December 27, 2014

Gutless educational administrators and the First Amendment, part 6577 (Updated)

This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.

Posted by Howard Wasserman on December 27, 2014 at 10:00 PM in First Amendment, Howard Wasserman, Sports | Permalink


This is not my area of law. I recall that the Ninth Circuit held that schools can ban clothing with the US flag when it might be disruptive (i.e., Cinco de Mayo). Does that precedent have any bearing here?

Posted by: anon | Dec 30, 2014 2:50:08 PM

Facebook is exploding with news that the school backed down after negotiations.


Posted by: anon | Dec 29, 2014 8:06:04 PM

CE: It shouldn't make a difference, at least for fans. They can tell the person to cover the tattoo and remove him from the game the if he refuses to do so. Just as they would first ask someone to remove, cover, or turn inside-out the offending t-shirt and remove him if he refuses to do so. Also, a tattoo probably is smaller and less obtrusive than a shirt, unless it's plastered across someone's chest.

Posted by: Howard Wasserman | Dec 28, 2014 2:20:16 PM

The school's stance is particularly absurd, given California's very broad statutory protection for student speech. Eg Education Code Section 48907 [“Students of the public schools shall have the right to exercise freedom of
speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons,badges, and other insignia, and the right of expression in official publications, whether or not such publications or other means of expression are
supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.
Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises
or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.” and Education Code Section 48950 [“School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from
governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.”]

Posted by: Gordon Danning | Dec 28, 2014 12:06:23 PM

I think an argument can be made that guests being involved makes this worse since school uniforms are a form of expression of the institution. So, bad as it might be, the institution itself can determine their school uniform won't have a political aspect. This will be a sort of institutional expression.

Here, the school is trying to limit other institutions' messages. A neutral time, place and manner uniform rule agreed upon by all parties is conceivable, if done beforehand, and not in this sort of biased ad hoc basis. As to the "well being and safety" rationale, weak. The school in Tinker had a better argument there, in part because of the long term nature of the armband usage and intermixing with other students in various contexts.

Trying to apply this to the fans in the stands is especially tricky -- there are a range of expression potentially involved here, down to hairstyles, clothing and so forth. What if it is agreed beforehand some color cap or something (red for the blood spilled? blue to honor the NYPD?) will be a silent protest? Silencing here might cause more unease than just letting in the shirts.

Posted by: Joe | Dec 28, 2014 11:31:59 AM

Classroom hypothetical: How are the Authorities going to apply this to someone with a tattoo? Say, a tattoo of the Awful-Implications-Phrase-of-the-Moment... or of the Confederate States of America battle flag?

Posted by: C.E. Petit | Dec 28, 2014 10:50:02 AM

Interesting question; I don't know the answer. On the one hand, under the transitive principle, it wouldn't make a difference. Schools control their events and the students who participate in them--whether their own students in school-sponsored off-campus events (Morse) or invited non-student participants in school-sponsored on-campus events.

On the other hand, I could see an argument that a different analysis would apply to fans in the stands, which might look a bit more like an open forum that the school has opened up to everyone and thus might be subject to less control.

Unfortunately, any such analysis would require a degree of nuance that courts are not willing to apply in student-speech cases.

Posted by: Howard Wasserman | Dec 28, 2014 7:27:22 AM

Does it make a difference, from a First Amendment standpoint, that the school's policy is being applied here to temporary guests on its campus rather than to its own students?

Posted by: Orin Kerr | Dec 28, 2014 2:50:32 AM

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