High school officials in Maine’s Cape Elizabeth School District and Cape Elizabeth High School violated the First Amendment rights of a then-sophomore student when they suspended her for posting an anonymous note complaining about her school’s failure to deal with sexual assault.
A federal appeals court agreed with a lower court that the student who blew the whistle on how school officials handled sexual-assault allegations was entitled to a preliminary injunction.
The controversy began in September 2019, when a student posted the following note in the girls’ bathroom: “THERE’S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS.” School officials investigated and eventually determined the author of the note was A.M., a sophomore.
School officials eventually suspended A.M. for three days for allegedly violating the school’s anti-bullying policies. They claimed that the note led other students to ostracize a male student known in court papers only as “Student 1.”
A.M. sued in federal court, alleging that school officials violated her First Amendment free-speech rights. In October 2019, the federal district court stopped school officials from punishing A.M., reasoning that they likely violated her free speech.
“Her speech not only contributes to this ‘political debate’ about how schools handle sexual assault, but, if true, highlights a real safety concern for the students of Cape Elizabeth High School,” the judge wrote in ruling in A.M.’s favor.
On appeal, a three-judge panel of the 1st U.S. Circuit Court of Appeals agreed in its Aug. 6, 2020, decision in Norris v. Cape Elizabeth School District.
The school defendants had argued that A.M. should not receive free-speech protection, because her post was not pure political speech. According to the defendants, the U.S. Supreme Court’s seminal free-speech decision Tinker v. Des Moines Independent Community School District (1969) only protected students’ political speech.
The 1st Circuit rejected that characterization of Tinker, writing: “We do not read the First Amendment protections in Tinker as being restricted to only core political speech.”
The appeals court then examined whether school officials under Tinker could reasonably forecast that A.M.’s note would cause a substantial disruption of school activities.
Here, the appeals court cautioned that the school officials could not rely on “post hoc rationalizations for the speech restrictions” but instead had to rely on their stated justifications at the time of the suspension. The court warned that if school officials can “use shifting rationales for student speech restrictions,” then they could camouflage their biases and punish students simply because they don’t like the students’ speech.
The appeals court found that school officials had not met their burden of showing a reasonable forecast of substantial disruption, because they could not show “an apparent causal connection between A.M.’s sticky note and the bullying of Student 1.”
The appeals court concluded that “[p]osting the sticky note was far from the best way for A.M. to express her concerns about student-on-student sexual assault and Cape Elizabeth H.S.’s handling of sexual assault claims.” However, the court determined that she was entitled to relief.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).