- Suppose your daughter, upset about not making the 2017 high school varsity cheerleader squad, reacts with not-so-nice language on Snapchat to 250 of her friends. The school suspends her from any cheerleading squad for a year. She is not at school when she does this.
- What if your nephew, a gay high school track star in 1958, was prohibited from receiving his junior year letter, even though he earned it?
- A friend, a Black female pharmacy student, is expelled by her university for racy pictures posted under a pseudonym on her social media accounts.
Each of these scenarios occurred. Some have been resolved; others are awaiting further court action.
How far can a school go in controlling the cyber speech or activity of a student who is not on campus? How can a school deny a student an earned award for excellence? When does the First Amendment protect speech? These are the topics we tackle when we begin to examine justice, particularly in the digital age. We must begin to ask ourselves which actions are unjust, requiring action – and which are reasonable exercises of an organization’s discretion. Sometimes, the case is clear, and other times it may be grey. In my opinion, all three of these scenarios demonstrate clear wrongdoing, but we must make those distinctions for ourselves.
The cheerleader, a ninth grade Pennsylvania student, posted a picture of herself and a friend, both with raised middle fingers, using the ‘f” word referring to “school,” “softball,” “cheer,” and “everything.” Snapchat pictures usually disappear after twenty-four hours, but one of her friends took a screen shot, showed it to her mother, a coach, and that precipitated the girl’s suspension from school. Her parents sued on her behalf and eventually won in the US Court of Appeals for the Third Circuit in Philadelphia. The court’s ruling: the First Amendment does not allow public schools to punish students for off-campus speech.
Now four years later, after the school district appealed, the US Supreme Court will hear the case this term. This will be a case of first impression. Watch for it.
Tom Ammiano was a track star in his junior year of high school. He was also gay, but not openly, due to a climate of discrimination in the 1950’s. His school determined that he would not receive his varsity letter for track due to his sexual orientation. He was deeply distressed, but he went on living his life, attended college, moved to San Francisco, became a teacher, and wrote a book about his life as a gay person. After hearing an interview with Ammiano on WQED public radio last December, cantor Stephen Saxon decided to take action. He wrote a letter to Ammiano’s high school in New Jersey which resulted in a review by his high school coach, now 90, and the now 81-year-old captain of his junior year team, both of whom said the varsity letter should have been conferred. The current school president will travel to California next month to personally present the specially designed letter to Ammiano – 63 years later.
University of Tennessee pharmacy graduate student, Kimberly Diei, was reported twice by an anonymous source for her racy pictures posted under a pseudonym. A disciplinary panel expelled her from school last September, giving her only two days to appeal. When they realized that she felt this was unjust and was therefore looking for a lawyer, the Dean of the college reversed the panel’s decision. Undeterred, Diei filed a federal lawsuit. Why was she expelled for her after-school actions? Diei suspects that the anonymous source of the complaints was a classmate, motivated by ethnic hatred and upset by repeat interactions in class. The case is still pending.
Is there a non-court method of resolving school disputes? Borrowing from the criminal justice system, “restorative justice” may be the answer. This is a system that relies on collaboration and conversation between two aggrieved parties. In the case of Rainer Harris, a Black student at a high school on Manhattan’s Upper East Side who was being bullied by white students, repeatedly calling him the “N” word, it worked. Last fall, the school scheduled assemblies, classes, checked in on Harris regularly, and facilitated a discussion between him and his major offender who was a former friend. While it was uncomfortable for both of them, the result was successful.
The court system, a stranger inspired by words over the radio, a process for reconciliation: these are all paths to obtaining the justice we all deserve.
“Tzedek, tzedek tirdof l’maan tichyeh” – Justice, justice you shall pursue, that you may live…
Audrey Brooks is an Emeritus Judicial Member, State Bar of Wisconsin, lifelong volunteer, and current Tucson Hebrew Academy Board Trustee
