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Sunday, January 10, 2016

Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.

[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.

1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.

Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.

[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.

4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?

Posted by Howard Wasserman on January 10, 2016 at 10:11 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


That would raise a serious unconstitutional conditions problem. Schools got away with it in the drug-testing context by relying on a safety rationale, slightly supported by a role-model rationale. As bad as courts are in this area, I doubt a blanket viewpoint-discriminatory waiver of the right to speak on matters of public concern would stand up. Normatively, it absolutely should not stand up.

Posted by: Howard Wasserman | Jan 11, 2016 5:04:19 PM

It would be important to know whether student athletes in this conference sign a pledge to adhere to certain rules of conduct. She may very well have forfeited her right to criticize the conference or use profanity. In which case, the school is perfectly within its rights to enforce her own pledge. Giving up a portion of one's rights to free speech for the privilege of playing the sport is perfectly constitutional.

Posted by: Phil | Jan 11, 2016 3:01:37 PM

Of course, stop-and-frisk really ended because NYC changed mayoral administrations and the policy was repealed. It's not clear what the Second Circuit or SCOTUS might have done with the policy. We do know that the Second Circuit was not generally fond of the way Judge Scheindlin handled this litigation.

Posted by: Howard Wasserman | Jan 11, 2016 12:12:46 PM

One could have argued two years ago that "we need to give up the pretense that residents of high crime areas in New York City have Fourth Amendment rights" because of stop and frisk, until someone sued; then, lo and behold, they apparently did have those rights.

If students sued every time this sort of thing happened, then it would happen less frequently, even if students lost most cases. (I taught high school for many years, and I know how deathly afraid administrators are of even a hint of a law suit). No lawsuits = no cost to administrators for acting stupidly = more stupid behavior.

Posted by: gdanning | Jan 11, 2016 12:02:08 PM

"this is really no defense of the overkill of the school here. It is that students still have First Amendments rights in a range of ways"

My concern was not that there is not a problem here but the discussion of said problem. The fact that the student-athlete here was suspended for five games is ridiculous. But, there is a difference between criticism and the profanity here. It does not "defy reality" to see a difference here.

This doesn't mean I support targeting the girl here, but there is a difference. This is the sort of reasoning I found weak. And, I upfront said so, and get some sort of smart aleck reply. Sorry if that is just my misguided sentiment, but I'm not the only one who has said you lose perspective at times. So, I don't feel too bad.

Moving past that sort of thing, yes, disruption and in school behavior should very well be tests here. As noted, social media here is a debatable line since it to me is unlikely that students IN SCHOOL (italics don't work) don't look at this sort of thing. She's a top athlete, probably a popular student, and her fellow students very well probably check her social media at school. Also, it very well might be wrong, but athletes and others often have special rules to follow tied to their activity. My student government example is but one there.

She was punished as an athlete for saying "eat shit" in reply to a regulation about sportsmanship. Not any student. Not for mere criticism. Not suspension from school. So, no, I think sportsmanship was a major factor in the punishment here. It was not "besides the point."

As to students not being able to criticize. I'm sure there are various troubling examples, but sorry mere criticism by students of schools seems to be still going on strong. Do I know this for sure? No, but I strongly suspect it in part by reading about the cases, media and other accounts of student protests, being a relative of two teachers etc. The cases repeatedly have these additional issues that you handwave away as insignificant. I'm sure there is a lot to criticize, but overkill to me is not useful there. ymmv


Not sure if relying on physical reactions like that is a great alternative, but avoiding such "fighting words" reaction is one reason such speech was banned in the past. I didn't go to public school, but "back in the day" -- and darn if there still was a First Amendment -- schools very well also officially stopped such speech.

Posted by: Joe | Jan 11, 2016 11:34:12 AM

The real problem is that by taking official action and discouraging profanity schools will deprive students of the benefit of other more potent social norms. When I was a senior in high school, I was standing along the rail of the balcony at one of our high school basketball games. A player on the other team fouled one of ours pretty egregiously and I yelled out "[expletive] you, [player name]". Almost instantaneously the 6'4" father of one of my best friends and classmates (as I recall, her father's nickname was "Big Jim") stood up in the bleacher row directly in front of me, grabbed me by the shirt collar lifted me off the ground, and said, "Foul mouthed little punk, would you talk like that in front of your mother?" To which I responded, demonstrating the smarts that had made me one of the valedictorians-apparent, "No sir."

But I suppose those were simpler times.

Posted by: Jeff Lipshaw | Jan 10, 2016 12:15:14 PM

I'll stand by the point. Schools have been able to get away with punishing students in the absence of any evidence of actual or threatened disruption. So, my point was, maybe we should just go with Justice Thomas and overturn Tinker. Worse, schools are increasingly getting away with punishing students for purely out-of-school speech, even speech that took place outside of school and off of school grounds--courts are requiring only that the speech be *about* school. Schools are increasingly becoming a constant sovereign controlling all speech by people who happen to attend that school.

Whether it was read in school should be a factor, since the school's jurisdiction should not (although increasingly does) extend beyond the school doors. Even if it was read in school, there still was no evidence of disruption.

The school regulation under which she was punished was not about sportsmanship. The nature of the WIAA regulation she was criticizing is beside the point in the punishment. As to why she would still be punished even without the profanity: Because schools and their administrators increasingly brook no criticism from students, even if stated in innocuous terms. Do I know this for sure? Of course not. Do I strongly suspect it based on the range of decisions out there? Yes.

I regret to hear that you find the analysis here not up to your expectations. You are, of course, free to limit your reading and commenting to blogs that do meet those expectations.

Posted by: Howard Wasserman | Jan 10, 2016 12:12:36 PM

I assume my last comment was not too blunt given the concerns of the original posting. Two additional things.

"it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" "

Not sure why. The regulation involved sportsmanship and the reply was a sort of "fu" in that regard. A polite "I disagree" meets its spirit.

To skip to the last point, yes, I think the "Wisconsin Interscholastic Athletic Association" is specifically concerned with student athletes, so the star player's reaction here would be of special concern. The punishment was tied to the sport. Perhaps, a student would be punished by being blocked from games, though her role as an athlete provides special cachet here and probably mattered a lot.

I can also see a member of the student government required to follow rules of order ala members of Congress and that this would apply to interactions with student government officials on social media. This might be a troubling line but it isn't imho the disposal of the 1A.

Posted by: Joe | Jan 10, 2016 11:34:56 AM

"We need to give up the pretense that secondary-school students have First Amendment rights."

Why? They have them. The concern here is that the rights are not being protected ENOUGH. That is different, isn't it?

I can carp on the analysis. For instance, "no indication it was seen by anyone while at school" -- if that is necessary, I wouldn't bet the house on it not being met. Did no student, while at lunch or something, check their Twitter and see a message the "the leading scorer and rebounder on the girls' basketball team" meant others to see?

But, this is really no defense of the overkill of the school here. It is that students still have First Amendments rights in a range of ways. If this level of nuance seems overblown, perhaps I expected a bit more of it on an academic leaning blog involving legal matters.

Posted by: Joe | Jan 10, 2016 11:03:00 AM

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