A federal court in Georgia has held that three school administrators might be held personally liable for a possible violation of a student’s right of free expression under the First Amendment. Readers of the Daily Dawg are well aware that students can express political opinions in school as long as there is no reasonable forecast of a material disruption of school. But what if the opinion expressed is not about international, national, or state issues, but rather, about firing the current principal?
The student, soon to be known as “the Plaintiff,” was a freshman at Chamblee Charter High School. He printed 36 stickers that depicted a headshot of the school’s principal, Ms. Braaten, overlaid on a waving U.S. flag. The text read: Fire Braaten. He distributed a few of these stickers to friends. His lawsuit alleged that he did not place the stickers on district property, but only placed one on his own phone case. The Assistant Principal thought this behavior was disrespectful and a violation of the Code of Conduct. At first he suspended the student for a week. One day later he reduced this to one day of ISS, which the student served.
If the A.P. thought this reduced sentence was going to avoid litigation he was mistaken. The family sued the school, the superintendent, the principal and the A.P. One lesson of this case: punishment in retaliation for the exercise of constitutional rights is illegal, regardless of how minimal the punishment is.
The school tried to get the case dismissed, and also sought dismissal of the three school administrators based on “qualified immunity.” None of that worked. Based on the allegations in the suit, the court held that there was no indication of a “material and substantial disruption” of school. Nor were the stickers “lewd,” “vulgar,” “sexually suggestive” or otherwise “plainly offensive.” Thus, citing Tinker v. Des Moines and Bethel School District No. 403 v. Fraser, the court concluded that the Plaintiff had properly alleged facts that would amount to a violation of his First Amendment rights.
But doesn’t this anti-principal sticker undermine her authority? Is it really ok for a 9th grader to do that? The court’s discussion of that argument is interesting. The court noted that there are cases where disrespect of administrators goes too far. For example, in Smith v. Mt. Pleasant Public Schools, 285 F.Supp.2d 987 (E.D. Mich. 2003) the student:
….clearly attempted to undermine the moral authority of the principal and assistant principal by questioning [the principal’s] marital fidelity and [the A.P.’s] sexuality. Spreading such gossip, and calling the school principal a “skank” and a “tramp,” invited discipline, and would have rendered ineffective a school administrator who would not respond to such a display of disrespect.
So the message to principals is: if a student calls you a “skank” you can put the kid in ISS. If the student refrains from such personal insults and just publicly calls for your termination, you cannot do that.
The judge considers the law on this to be “clearly established,” and so the three school administrators are on the hook for potential personal liability. That strikes me as the shakiest part of this decision. There are many judges who would rule otherwise, citing the “special circumstances of the school,” the young age of the student and the role of the school to nurture civility and respect for authority.
The case has a long way to go, but so far, the Plaintiff’s case is alive and well. The case is K.B. v. Dekalb County School District, decided by the federal court for the Northern District of Georgia on April 29, 2019.
DAWG BONE: YOU CAN ONLY BE LIABLE FOR VIOLATING LAWS THAT ARE CLEARLY ESTABLISHED, BUT WHAT’S CLEARLY ESTABLISHED IS NOT CLEARLY ESTABLISHED.
Tomorrow: Lubbock-Cooper wins two.