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Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

A 17-year-old high schooler in Reno was suspended last week for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the school walk-out (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected).

The ACLU of Nevada sent letters to the school and to Amodei. The letter to the school laid-out the First Amendment argument the ACLU would make in a lawsuit. This could not have been in-school speech because it was made during a non-school-sanctioned event for which Noah was marked as being impermissibly out of school; if at school, it was non-disruptive because no one in school heard what he said; and the punishment was more severe because of Noah's viewpoint and his past expressive activities (during a school debate, Noah criticized Donald Trump, rather than talking about the assigned topic). I find the first point especially important--if speech made while a student is impermissibly outside of school is school speech, then the school can reach everything a student does. The letter demands rescission of the punishments imposed, which also presumably would be the remedy sought in the lawsuit, along with nominal damages.*

[*] This case illustrates a unique remedial and framing problem. Noah is presumably in 11th Grade, so he likely will have graduated by the time litigation is complete, allowing the school to vacate any remedy and avoid attorney's fees when the case becomes moot. The claim for nominal damages avoids the mootness problem. But a claim for nominal damages is subject to qualified immunity and there is almost certainly no robust consensus of authority arising from factually similar cases. Noah could sue the school, which does not enjoy immunity, but then the problem is whether the principal who imposed the suspension is the policymaker for the entire school board or school district. I will have to keep this in mind for class.

The letter to Amodei called for a public apology for retaliating against the student by enlisting the school to sanction him, ending with the rhetorical flourish that "[w]hat actions you take next will determine you and your office’s commitment to the First Amendment and the Constitution you swore to uphold and defend." The idea of a Bivens action against the congressman (which the letter did not threaten) raises two interesting problems: 1) causation and 2) Speech or Debate immunity (constituent interactions are viewed as political rather than legislative), but it would be fun to see the argument play out.

Posted by Howard Wasserman on March 21, 2018 at 04:20 PM in First Amendment, Howard Wasserman | Permalink


Not sure how this follows, Phil.

First, there aren't "compulsory government schools" to the degree that parents have no right to send their kids elsewhere.

Second, if anything, if the person went to private school, the school both would be likely as or more likely (in many cases) to suspend the child, and since it is a private institution, the child would have less relief. (Here the fact it's a government actor calling in; in another case, it might not be.)

Posted by: Joe | Mar 24, 2018 1:34:39 PM

Reason #685 why there should not be compulsory government schools.

Posted by: Phil | Mar 24, 2018 1:02:40 PM

I wonder if there's also a due process concern. Is it really true that anyone can call up a school, say "X Student said Y bad thing" and get that student suspended without an investigation or a chance to contest the suspension? (Even assuming that "Y bad thing" is enough to suspend a student for, which it seems very clear to me in this case, it is not.)

Posted by: J | Mar 24, 2018 11:53:20 AM

"Amodei's office called the school, which suspended."

I appreciate the legal discussion but there is something to be said about the overall spirit of things here. It is patently violating the basic spirit of the First Amendment & basic avoidance of being an [bad word] to do this. The article continues that the representative when pressed in part noted "he didn’t ask for any specific thing or beat the kid up." Again, you know ...

Posted by: Joe | Mar 23, 2018 6:31:36 PM

If you try to use this as a teaching topic in class, there are aspects not mentioned in your post that you should think about before teaching. Such as (1) On the "policymaker" question, the pre-suit letter might make a real difference. If the Sup't does not step in and let the kid sit in student gov't, then either Sup't has ratified or Sup't has demonstrated that Principal is unreviewable and therefore IS final policymaker; (2) suit does not become moot on graduation yielding no fees if pltf seeks and gets prelim injunction to allow him to sit in student gov't.

Posted by: Sam | Mar 23, 2018 7:15:05 AM

Descriptively, yes as to both. Courts are extremely deferential to how schools define school events and programs and what "disrupts" those programs. And Fraser allows schools to punish the use of profanity and suggestive speech. According to the letter, Noah's debate opponent was offended by the political rant and filed a bullying complaint, which the school rejected.

Posted by: Howard Wasserman | Mar 22, 2018 5:20:44 PM

Out of interest, if the school had held a special event in which the congressman visited it and took questions and the students were told beforehand to speak courteously and limit their questions to how a congressional office works and not substantive issues, do you think the same speech could be subject to school discipline? And do you think the student could have been disciplined for the debate incident?

Posted by: Paul Horwitz | Mar 22, 2018 11:31:36 AM

If intellectual honesty is to indeed trump partisanship then comments like Anon's should be deleted summarily. It adds nothing to the conversation, has no intellectual content, and relies only on partisanship.

Posted by: YesterdayIKilledAMammoth | Mar 22, 2018 2:13:00 AM

Who doesnt have sympathy for the poor Congressman who had to listen to his constituents about his shameful inaction? I mean, those NRA checks arent going to cash themselves!

Posted by: Anon | Mar 21, 2018 10:28:55 PM

Whether there's a Bivens action against the Congressman, there's a great 1983 claim against the Reno public school district. Plus, at least there is a fee-shifting provision with 1988.

Posted by: TS | Mar 21, 2018 5:25:25 PM

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