My son/daughter was suspended from school for statements they made that seem too minor to warrant discipline to me, does he/she have a claim?
14 April 2020
Answer: Maybe. Students do have first amendment rights that are balanced with the power of the school to maintain order. The question is whether the speech did or could substantially disrupt school operations or will interfere or interfered with the rights of others. Tinker v. Des Moines Indep. Comty Sch. Dist., 393 U.S. 265, 286 (1986).
Schools are focused on preventing bullying in today’s climate with much recent press attention on the topic. States have passed legislation to crack down on bullying and many schools have written policies that follow or mirror the legislation. Such is the case in Hopkinton, Massachusetts where the school suspended students for their speech determining it was “bullying” under Massachusetts law and school policy and litigation challenging the actions has ensued, including a direct legal challenge to the constitutionality of the state law.
These cases, some to watch, are Doe v. Cavanaugh and Bloggs v. Cavanaugh, which have been consolidated, and are pending in the United States District Court for Massachusetts. Civil Action No. 19-cv-11384-WGY; 19-cv-11987-WGY; 2020 U.S. Dist. LEXIS 19194. In each case a student has brought various claims against the school for disciplining them in alleged violation of their rights arising out of the same chain of events.
The gist of the argument in Bloggs is that the student’s activity was not significant enough to be disciplined; that there was no risk to disrupting school operations or any affect to the rights of another student. Bloggs made his statements out of school, in a private chat group, and unbeknownst to the purported victim until an investigation ensued. Bloggs also complains that he was disciplined for his association with others, as opposed to his actions., in violation of his right of association. In both cases, although the facts are different, the claims are the same, and both include a direct challenge to the state bullying law and the mirror image Hopkinton policy on the basis of being overbroad for prohibiting protected speech and unconstitutionally vague.
The town filed a motion to dismiss in both cases and in each one most of the claims survived, thus it looks like there is merit to the claims and litigation will continue. Along with the direct challenge to the state law, the possibility of an important ruling on the constitutionality of the state law and in the area of free speech in the secondary school setting is high.
These situations are highly fact specific and a trained legal eye is needed to evaluate if a claim exists and how strong it may be. If you feel your child’s first amendment rights have been violated, feel free to give us a call.