Student Video Fuels School Free-Speech Debate

(CN) – On a Saturday in February 2017, a group of high school friends made a video. One of them was running for class president of San Ramon Valley High in Danville, California, and they thought it would be fun to create a short campaign promo portraying him as James Bond rescuing a fellow student kidnapped by terrorists. Working without a script, each student improvised their own lines. They used fake guns and a car. Two days later, the video went up on YouTube. It was meant to be funny, the teens later said.

But not everyone agreed. In class the next day, the kid playing James Bond heard some students found it offensive. His friends who played terrorists were Afghan-Americans  and practicing Muslims, and others found their portrayal of terrorists racially and culturally insensitive.

The video came down after roughly 12 hours and 30 views. What happened next stoked student walkouts, protests and an ongoing federal lawsuit claiming institutional bullying and suppression of free speech.

It also raised questions about how far schools can go to regulate students’ First Amendment rights, and whether that should include protecting other students from offensive speech.

On February 9, the kid playing Bond – identified only as N.Y. in court documents – was called into the vice-principal’s office, where assistant principals Jamie Keith and Dearborn Ramos questioned him.

In court documents, N.Y. says Ramos belittled him and accused him of being “smug” and “unremorseful,” and that Keith said a suspension would affect his chances of getting into college. They even made fun of his driving, N.Y. claimed. When assistant principal Bernie Phelan joined in, he focused on the use of guns in the video, allegedly threatening to have a school resource officer get a warrant to search his home.

In a statement N.Y. says he wrote after a three-hour interrogation, he claims he did not mean the video to be racist and certainly didn’t expect the reaction it got. “We wanted something entertaining and to keep the people who viewed it laugh,” he wrote. “My intent for the video was to portray me as a hero like James Bond saving the day. I personally didn’t expect the turnout.”

The school kicked N.Y. out of leadership class, disqualified him from the election and stripped him of his current position as junior class president.

On May 15, 2017, N.Y.’s attorneys informed the San Ramon Valley School District that they intended to sue unless N.Y. was reinstated. The next day, he was. The district also decided N.Y. should be allowed to be president since he had received the most votes anyway.

It seems N.Y. got what he wanted. So how did he and his parents end up in federal court?

In a federal lawsuit filed in San Francisco in July 2017, N.Y. describes the backlash against his reinstatement as swift and severe. In May, Dr. Jason Reimann, a school district official, allegedly told students that N.Y. had only been restored to the presidency because of the threatened litigation.

“The presentation was specifically designed to align the student body against N.Y.,” the lawsuit says.

Students staged a walkout in May, and in June, 140 teachers, staff and school district employees presented the school board with a letter of protest over N.Y.’s reinstatement.

N.Y. claims his leadership teacher, Janet Willford, turned against him, as did the school’s “resident substitute,” Kerri Christman Gilbert, who posted her outrage on the school’s Facebook page.

“I was there when the kids were informed and they were outraged and rightfully so,” she wrote. “When he takes over he’s going to have a heck of a time earning their respect. And respect is not granted it’s earned. Next school year ought to be interesting.”

Through his parents David and Leilane Yu, N.Y. sued the San Ramon Valley School District and a slew of school officials, including San Ramon Valley High School Principal Ruth Steele, Phelan, Keith, Ramos, Willford and Gilbert, claiming retaliation, discrimination and violation of his constitutional rights to free speech and due process.

N.Y. is a Catholic of Asian descent, and his suit claims Willford favors leadership students who are white and attend her Presbyterian church.

But N.Y.’s First Amendment claim is at the crux of the case. He says the school’s student election campaign rules prohibiting “inappropriate” signs and slogans is over-broad, and that the school should not have disciplined him for exercising his right to free expression.

“The defendants are aware or should be aware that despite pedagogical concerns, neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” his lawsuit says, referencing Tinker v. Des Moines Independent School District, a milestone Supreme Court ruling for students’ First Amendment rights.

In an interview, N.Y.’s attorney D. Gill Sperlein said that the discipline N.Y. received was a clear constitutional violation.

“The reason for the discipline was because of his speech. They didn’t like what he had to say. That’s a violation of the First Amendment,” he said. “At worst, the video may have been racially insensitive in some way. But I’m not in any way conceding that, but even if that is the case, students have the right to be offensive.”

The Tinker case involved three students who were suspended for wearing black armbands to protest the Vietnam War. The Supreme Court ruled that for schools to censor speech they “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Under Tinker, the school must show that student expression would lead to either a substantial disruption of the school environment, or an invasion of other students’ rights.

The lawsuit says N.Y.’s video doesn’t even come close to that, claiming, “The protected speech did not cause a material and substantial disruption to school activities or to the work of the school, nor was it reasonably likely to do so.”

In an email, First Amendment scholar and dean of the Widener University’s Delaware School of Law Rodney Smolla said N.Y. has presented a strong constitutional challenge.

“Supreme Court and lower court decisions tend to defer to the judgment of school officials when the student’s speech is part of a school-sponsored activity, including extra-curricular school activities such as student government elections. Yet the student here received a relatively extreme punishment for what appears to be a very mild transgression—if it was any credible transgression at all,” Smolla said.

“His video was a political parody. The school’s prohibition of ‘inappropriate’ material strikes me as vague and overbroad,” Smolla added. “There appears to be little proof of any real disturbance or disruption. If what is alleged in the complaint bears out as true, I believe the student has a strong claim for a violation of his First Amendment rights.”

Luke Boso, a constitutional law professor at the University of San Francisco, also said courts generally give a lot of latitude to schools for regulating free speech, but Tinker requires that they prove more than just an “undifferentiated fear” of disruption.

“We don’t have a bright line rule on what counts as disruption,” Boso said in an interview. “We’re talking about something that could tangibly interfere with the work of the school. De minimis interruptions probably won’t cut it.”

Boso noted threats of violence or physical fights could be enough. “There’s been a few cases about students bringing confederate flags to school and courts have largely found schools can regulate that kind of speech because it can incite racial tension,” he said.

Mark Davis, an attorney for the school, says the district was within its rights.

“Schools can, to a certain extent, regulate speech, and students’ rights for speech are not the same as adults’ rights especially in a school setting,” he said in an interview. “[The video] was done by students with the intent that it be seen by students and it was part of a school activity, even if it was made off-campus.”

Boso agreed, noting that lower courts give a lot of deference to schools on this point. “The consensus seems to be that a school could punish off-campus speech if it has a reasonable basis for believing that the speech could reach campus and substantially disrupt the work of the school,” he said. “It seems the school does have a strong case on both of those requirements.”

But Sperlein said the school has gone too far in regulating what students can and cannot say, a sign of society’s widespread shift in favor of restricting speech in schools.

“This is occurring not just at the high school level but at the college level as well, with people having the mistaken impression that First Amendment does not protect speech if it offends someone or hurts feelings – which is a fundamental misunderstanding of the First Amendment,” Sperlein said.

So far, the case has already gone through two rounds of motions to dismiss. U.S. District Judge Maxine Chesney has ruled in favor of the school twice – most recently on Friday. She dismissed claims against the district because it is not a person that can be sued under the Civil Rights Act. She also dismissed the equal protection and race and religious discrimination claims against the administration defendants, and the retaliation claim against Gilbert, and she partially dismissed claims against Willford.

“She has expressed concerns over the merits of this case,” Davis said. He added that in pre-trial conferences, Chesney showed sympathy for the district. “We’ve had two pre-trial conferences and both times she’s made comments saying words to the effect of, ‘boy, the school was in a tough spot.’”

However, Chesney has refused to dismiss N.Y.’s First and Fourteenth Amendment claims against the administration defendants or Willford. In a June order, she wrote, “the FAC’s [First Amended Complaint’s] allegations, construed in the light most favorable to plaintiff, cannot be read to support a finding that, as a matter of law, the video was in fact racially insensitive and violent.”

The case is set for trial in March 2019. Chesney has already ordered the parties into settlement talks twice, with no success.

Sperlein said the Yus want vindication for their son and to fix the school’s broad campaign regulations for other students.

“We intend to go to trial,” he said.

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