Sticky note in a bathroom was ‘not disruptive of school discipline’
A Maine school district ran into skepticism from a federal judge about its decision to suspend a female student who posted a note about an unidentified “rapist” at her high school.
Aela Mansmann “has shown a fair likelihood of success on the merits” of her First Amendment lawsuit, U.S. District Judge Lance Walker wrote in an order last week, issuing a preliminary injunction.
He said “the record suggests (but does not conclusively establish) that the expressive activity the Defendants would punish was neither frivolous nor fabricated.”
That means the Cape Elizabeth School District can’t suspend the 15-year-old, identified in the suit as “A.M.,” for the duration of her lawsuit against the district, superintendent and Cape Elizabeth High School leaders.
The school charged Mansmann (above) with “bullying” because it construed her message, posted in a girls’ bathroom, as an attack on a specific student who was a subject of “rapist” rumors. His family said he missed eight days of school out of fear of the rumors.
Mansmann’s sticky note read in its entirety: “There’s a rapist in our school and you know who it is.” She claimed she was trying to pressure school officials to act on several sexual assault reports going back months. The school suspended Mansmann the same day she was quoted in a local news article, more than two weeks after the incident.
Not only was her expression limited to the girls’ bathroom and “related to a matter of concern to the young women who might enter the bathroom,” but it was “not disruptive of school discipline,” Judge Walker wrote.
The order fleshes out some of the missing details from media reports earlier this month, though the judge also omits some of the school’s findings in its “quite extensive” investigation of the sexual assault rumors. To recount the findings “would be upsetting to certain students and their families,” Walker wrote.
UCLA Law Prof. Eugene Volokh, a First Amendment expert, wrote in a blog post Friday that the order “seems to me to be correct.”
Can’t punish expression based on ‘likelihood that a student might be offended’
The high school identified Mansmann as the author of the original sticky note through camera footage. Other female students had “engaged in copycat expression in another school bathroom,” the order recounts.
Principal Jeffrey Shedd, Vice Principal Nate Carpenter and other administrators interviewed 40 students to determine the basis of the notes, and then Shedd emailed the community Sept. 20. “Needless to say, the wide-ranging investigation and letter stirred up the hornet’s nest of gossip and rumor,” and a male student suffered “ostracism by his peers,” Walker wrote.
The judge notes that Mansmann, the only student “featured” in the media about the sexual assault rumors, received the most severe punishment of the girls who posted sticky notes.
The school denied “this was a factor” in her three-day suspension, yet Principal Shedd complained about the media attention in a second email to the community Oct. 9. Walker held a hearing on Mansmann’s motion last week. (Her mother Shael Norris is the named plaintiff.)
The only point of contention between the parties is whether Mansmann’s speech in school was protected. Walker said in his introduction that he “consider[ed] the issue a very close one.”
The judge put aside three Supreme Court precedents on student speech in the K-12 context to focus exclusively on the oldest and most “speech-permissive” standard, known as Tinker. It upheld the right of students to wear black armbands to express opposition to the Vietnam War, an example of “passive expression.”
School administrators must not be given so much leeway that they “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes,” Walker wrote, quoting an even older wartime Supreme Court precedent banning “compelled participation in the flag salute.”
They cannot punish student expression based on “the likelihood that a student might be offended or upset or might be distracted throughout the school day by reflection on the content of the expression,” the judge said.
No one would post a sticky note if an ‘active rapist’ were in the building
The school district didn’t make its defense any easier, Walker wrote, by noting there’s “relatively little case law” on defamatory speech by students. That’s how it characterizes Mansmann’s sticky note.
Yet it cannot even convincingly show that Mansmann was referring to the student who missed school for eight days, the judge said, noting that Mansmann claims she didn’t know about “the alleged videos” depicting the unidentified student as a rapist.
Principal Shedd also stepped on the district’s argument by referring to the sticky note as “well motivated, with good intentions” in his Oct. 9 letter. It’s not clear at this point in the litigation if Mansmann “acted negligently” in the first place, or whether she had a good-faith belief, Walker said.
What the record “speaks much more clearly” about is the essentially political nature of the sticky note, he continued:
By raising the specter of a rapist in the school and the administration’s knowledge of his or her presence, A.M.’s note expresses political advocacy on a question of significant public consequence. … 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.
Walker also dismissed the district’s argument that the note was “inherently disruptive” and thus fits the standard for speech suppression under the Tinker standard.
Again citing “the record as it currently stands,” with several “significant” factual disputes, the judge mocked the district’s claim that the note suggested an “active rapist” was in the school. “Students who seek to sound the hue and cry regarding an imminent threat in the school building do not
do so by sticky note,” he wrote.
Walker was also not convinced that the interruption of administrators’ and students’ schedules at school, occasioned by the sticky note, constituted a “disruption” under Tinker. Neither did the claim that students felt “temporarily upset or unsafe” during the investigation.
The Cape Elizabeth situation actually resembles that of the school in Tinker, which was speech that caused controversy, not “actual threats of harm or violence,” the judge said.
‘Madison would recoil’ at school’s argument
The district’s case is stronger on its rationale of punishing Mansmann for “invading the rights of others,” but still not sufficient, Walker wrote.
He cannot find “a clear factual connection between” the note and the unidentified male student who missed several days of school. Mansmann claims she has “audio recordings of her meetings with administrators that refute” the district’s claim that she “directed” the rapist note at that particular male student, the judge said.
He also scolded the district for claiming that Mansmann “caused” trauma to the male student. The defendants “do not closely link her protected speech to the actual harm he suffered”:
A.M. posted a sticky note in the girl’s bathroom that stayed up for a matter of minutes, did not specifically name an individual, did not use photos, and arguably targeted the administration—the “you” in the note—rather than the “rapist.”
There is no “clarity” that the note, “in fact, caused reputational and educational harm” to the male student, Walker concluded. In contrast, Mansmann will suffer “irreparable injury” if she’s suspended for speech that the judge has already determined is “likely” protected by the First Amendment.
The district did not stop at issuing a three-day suspension to Mansmann, but warned her that “future actions of this sort” could result in her expulsion, despite having no previous disciplinary record, the judge noted.
That would mean the impermissible chilling of “her ability to speak on the topic of sexual assault or serve as a victim advocate,” he said. (Mansmann testified against the school’s handling of sexual assault reports at a school board meeting in June.)
“I am not unsympathetic to the harms on the other side of the ledger,” Walker continued, referring to the unidentified male student and school environment during the investigation, but “justice deferred is not justice denied in this instance.” If the district eventually wins the lawsuit, it can still punish Mansmann “just a few weeks or months later.”
Meanwhile, Mansmann “has a right to express her viewpoint” regardless of whether she goes through “the proper channels” – another rationale by the district for punishing her. “Indeed,” Walker wrote, “even in the context of prison administration, grieving a non-frivolous matter is a constitutionally protected exercise.”
He warned that school administrators may be trying to impose their own “political and social views” by silencing Mansmann. They have “demonstrated a relatively intense desire to control messaging about the health of their high school environment and to demonstrate to the public at large that
they have the matter well in hand,” while largely denying a factual dispute.
Walker closes by quoting Alexis de Tocqueville, the French chronicler of early American society, and accusing the school district of betraying the Founders:
If school administrators receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us? Contemporary examples abound of betrayal of free speech principles to avoid ideas or speakers with whom we disagree. Madison would recoil. Individual liberty is both the cause and the result of personal fortitude.