Despite reversal, Vero Beach High School still in violation of the First Amendment

Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High School’s decision to disqualify PLF client, J.P. Krause, from the race for senior class president. “After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principal’s decisions regarding disqualifying candidates from the election, and will accept the original election results,” the Superintendent said Tuesday afternoon.

While this is a win for our client—and the voters of Vero Beach High School—it doesn’t go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary record—the allegation that he “harassed” his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

JP’s speech in class—and his subsequent punishment are directly related. It should be clear to any observer that JP’s speech was political satire-speech that is protected by the First Amendment. The First Amendment wasn’t designed to protect feelings, but to prevent the government from censoring views that it disagrees with. That’s just what happened here. The District’s harassment policy has been used to punish JP for his speech—a speech that the school disagreed with. While under certain circumstances schools have the right to censor student speech, that’s not the case here. Courts have ruled that school policies that go too far to censor speech are unconstitutional.

The policy’s broad ban on “verbal conduct” is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school district’s harassment policy as overbroad, holding that even speech that is defined as “harassing” may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the school’s harassment policy improperly swept in those “simple acts of teasing and name-calling” that had previously been held to be protected by the First Amendment. The policy’s language in that case barred speech that has the “purpose or effect of” interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. Judge Alito explained that even if the speech created a “hostile environment” that “intrudes upon . . . the rights of other students,” it is not enough that the speech is merely offensive to some listener, because “there is no categorical ‘harassment exception’ to the First Amendment’s Free Speech Clause.”.

The school’s harassment policy—like the one at issue here—had no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar “core” political and religious speech (like J.P.’s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a student’s First Amendment rights.

Likewise here, the school has used this harassment policy for a problem that doesn’t exist. Much like a square peg doesn’t fit in a round hole, the arbitrary use of a school district harassment policy to punish a student for constitutionally protected speech is wrong, misguided, and sends a message to other students that their speech might be censored as well. This creates a “chilling” effect on campus, stifling student speech. Students should be free to learn and discuss ideas, especially ideas of public importance, absent fear of school censorship. The punishment of J.P.’s speech has illustrated that the school is not committed to training its students to meet the challenges of adulthood and has sent a message to other students that their speech might be arbitrarily censored too.

“The loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). In other words, it doesn’t matter that the school district reinstated J.P. It still gave him detention and wrongly left the charge on his record that he “harassed” another student. He didn’t. Accordingly, the threat that it will punish him in the future for similar speech is still there. Until he is ensured that he won’t be punished for political satire, his speech rights are being harmed irreparably, which is why PLF won’t stop until J.P.’s rights are fully restored.