skip to main content

Publications

SEE YOU IN COURT! - June 2010

June 1, 2010

Ellen Evangelic worked very hard through her four years at Nutmeg Memorial High School, and she was delighted when she learned that she had achieved her goal of being the valedictorian of her class. In recognition of her achievement, she would give the student graduation speech. Ellen was particularly excited, because this would be her opportunity to share her religious faith with all of her classmates.

As required, she submitted a draft of her speech to her advisor, Steve Secular. Steve was shocked by Ellen’s blatant religious theme. She had written that the teachings of Jesus Christ guide her daily life. Steve met with Ellen and told her that Jesus was not going to be a part of the Nutmeg graduation ceremony. “I really don’t care what, but talk about something else. You can’t mention Jesus at a public school graduation.”

Ellen was furious that school officials would prevent her from proclaiming her faith, and she posted a vicious attack on her Facebook page, calling Steve an “idiot” and the “spawn of Satan.” Her friends joined her in her outrage, and one of them posted a response on Ellen’s page, expressing the hope that Steve would soon “die and burn in hell.” Ellen then posted another message, which stated “Watch me tomorrow!!”

The next day, Ellen wore a black T-shirt to school, with “SILENCED!” printed on the front, and “OK – I won’t say ANYTHING” on the back. She explained to her friends that she was engaging in a silent protest, and that she would not say another thing to any of her teachers for the rest of the year. Her protest was the talk of the school, and by the end of the week, seventeen other students wearing “SILENCED” T-shirts were also refusing to talk in class.

The high school principal went ballistic, and he recommended that all eighteen students be expelled from Nutmeg Memorial High School. Mrs. Superintendent threw a bucket of water on him, and they agreed that only Ellen would be brought to the Board for expulsion. Mrs. Superintendent notified Ellen that she was recommending Ellen’s expulsion for “inappropriate attire that caused a disruption to the educational process.”

The members of the Nutmeg Board of Education had already heard most of the story from Mrs. Superintendent, and they were eager to expel Ellen. Mrs. Superintendent presented the case for expulsion, and she argued that Ellen should be expelled because she was insubordinate to her advisor, she encouraged other students to engage in disruptive behavior by wearing the T-shirts, and through her blog postings she incited other students to be disruptive.

“Wait a minute,” interjected Attorney Bill Alot, the local legal scourge who was representing Ellen at the hearing. “The notice of hearing only mentioned the T-shirt. Insubordination and what Ellen did at home on her blog is none of the Board’s business. I move that this hearing be limited to the issue of Ellen’s T-shirt.”

Notwithstanding these arguments, the Board went ahead and heard all the information. After deliberating for five minutes, the Board reconvened and expelled Ellen for six months and ruled that she could not participate in the graduation ceremony. Attorney Alot vowed to bring an action for injunctive relief. What are his chances?

*        *        *

Bill has a pretty good case this time, and the Board may want to rethink its position. Ellen’s constitutional rights may have been violated in various ways.

First, Steve’s concern about the graduation speech is understandable, but he likely overreacted. Here, we must distinguish among free speech rights, free exercise rights, and Establishment Clause prohibitions. Under the Establishment Clause, actions by school officials must have a secular purpose, must not advance or inhibit religion, and must not entangle government with religion. Here, the question is whether permitting Ellen to give her speech would impermissibly advance religion. If graduation speakers have been given the choice to pick their topics, Ellen should be treated the same way. As long as her references to her faith do not devolve into prayer or admonition (e.g., threats of perdition), she should be able to refer to her faith. Steve’s overreaction could be viewed as inhibiting religion. Moreover, it would single out religious speech for disfavor, a possible violation of Ellen’s rights under the First Amendment.

Ellen’s T-shirt is different. If T-shirts are allowed, students can wear them, and any message on them has been subject to First Amendment protection for over forty years. However, that protection is not absolute, and messages that seriously disrupt the educational process (or are vulgar or promote drug use) are not protected. Here, Ellen’s message and her conduct was disruptive of the educational process – students need to speak in class as part of instruction, and school officials did not have to tolerate Ellen’s refusal to do so. The disruptive aspect of her speech was compounded by the reaction of the other students, and thus she can be told not to wear the T-shirt. However, moving the matter right to expulsion without prior intervention seems extreme.

The blog is also subject to review. Ellen’s attack on Steve and the response it engendered might appropriately subject Ellen to discipline. However, here caution is warranted. At the least, school officials would have to show that it reasonably forecast that the blog would cause substantial disruption or interference with the educational process. Moreover, the authority of school officials over off-campus conduct is generally limited to situations in which the conduct severely impedes the day-to-day operation of the school. Here, it is simply not clear whether that standard applies, because the posting dealt directly with school. In a word, board members must be cautious in considering such matters.

In addition, this situation presents significant due process concerns in at least two ways. We note that the Board members had heard most of the story already from Mrs. Superintendent. However, at expulsion hearings board members sit as impartial judges. It is not appropriate for the superintendent to talk in detail about a recommendation for expulsion in advance of the hearing. The fact that the Board members here were “eager” to expel Ellen betrays their bias, in violation of their duty to be impartial.

Finally, the notice of hearing also presents a serious due process concern. Before any hearing that affects one’s rights, a student (or teacher or parent) is entitled to notice so that he/she can prepare to protect his/her rights. Here, the notification simply referred to the T-shirt, and Ellen had no notice of the other charges. A simple fix would have been to adjourn and reconvene after an amended notification is provided. However, by proceeding to consider matters outside of the notice for expulsion, the Board handed Attorney Alot a strong due process claim in court.  

Attorneys

Practice Areas

Industries & Featured Services

© Shipman & Goodwin LLP, 2017. All Rights Reserved.