The First Amendment is most clearly tested in high school because teenagers becoming adults don’t have a clear sense of boundaries in life or in speech and, whatever “appropriate” expression is, they don’t know it.
When I was a young reporter, I wrote a story about a California appellate decision overturning the suspension of a girl who had dyed her hair partially green. I still recall the author of the opinion noting that her fellow panel member’s hair was a salt and pepper color and would thus violate the school’s prohibition on varying hair colors.
In a few decades of reporting since then, I’ve noted that school conduct codes often bring about fact situations that are both amusing and illustrative of the tensions underlying First Amendment law.
So a recent ruling out of the U.S. District Court in San Francisco involves a candidate for student body president in the East Bay who created a James Bond parody video portraying two Muslims as his antagonists, roles played by two Muslim Afghan-American classmates.
As noted by Judge Maxine Chesney, the candidate, according to his complaint, “rescues a fellow student who had been captured by a radical group with the intention of forcing him to participate in an international video gaming competition.”
He says he later received the most votes. But school administrators came down hard, kicking the boy out of the campaign and out of student government.
His video had run afoul of a rule prohibiting “inappropriate” campaign signs and slogans.
We hear that a lot these days. It is a vague notion that hews to the speaker’s moral and cultural sensibilities, with its utterance, almost always categorical and absolute, accompanied by outrage rather than reason.
The student complained that he seemed to be singled out since a bunch of other student videos had avoided sanction under the same amorphous standard. Those other videos portrayed sexual assault, harassment and torture. Another suggested that “a rival Catholic school is a terrorist organization.”
Still other student videos portrayed “explicit sexual imagery of rubbing nipples and performing a striptease while money is thrown.”
He also alleged that a previous student body had created and distributed a “Pepe the Frog” poster. The cartoon figure that spoke with a broad French accent and wore a beret has inexplicably been converted by forces of the alt-right into a meme that, according to the complaint, “typically connotes racist, anti-Semitic or other bigoted themes.”
Unfortunately for the plaintiff, he made those allegations as part of a claim under the Equal Protection Clause. Said the judge, “Plaintiff does not allege, however, facts to support a finding that any of those students were not members of the groups in which plaintiff states he is a member.”
As a result, his claim was subject to dismissal.
In their defense, administrators argued that the Bond video “was potentially racially and culturally insensitive,” depicted “guns and violence,” and contained “inappropriate sexual overtones.”
They also appeared to argue, the judge noted, that a “student of ordinary intelligence” would be on notice that “inappropriate” includes “culturally insensitive” campaign materials.
But Chesney allowed the Due Process claim to go forward. “The FAC, construed in the light most favorable to plaintiff, does not support a finding that the video here at issue was, as a matter of law, culturally insensitive.”
My dad was a teacher and my sister is a teacher, and one has great sympathy for the effort by teachers to maintain a sense of civility within the teenage jungle of classrooms and campus.
But, you see, I was suspended from high school (this was an awful long time ago) for wearing sandals without socks. I still remember a swim coach at our school who had an inordinate fondness for the team members and was notorious for calling girls into her office and measuring the length of their skirts.
So I have had ingrained into me a suspicion of high school conduct codes. And the reaction and the excuses here suggest that, unlike so many other aspects of civil society, the tension between administrators and the hot house that is high school society have not changed much in four decades.