In T.V. v. Smith-Green Community School District, a pair of students are suing their school after the school removed them from extracurricular activities because the students posted pictures of themselves with penis-shaped lollipops at a slumber party.
In a supplemental brief filed with the federal district court on June 10, the school makes arguments totally irreconcilable with precedent or common sense. The crown jewel in the absurdity of the argument: “The First Amendment is one of the most powerful sources of civil rights, and courts are wise to be wary of it.”
Really? Courts should be wary of civil rights. Really. The U.S. Government should be afraid that people have rights. I wish I had a time machine and could bring Thomas Jefferson to the present so he could hear how the federal judiciary needs to be wary of the rights of citizens. (And as SPLC Executive Director Frank LoMonte has pointed out, the only legal authority they cite for this proposition is an overruled and superseded district court opinion from a different jurisdiction, which has all the legal authority, persuasive or otherwise, of a Bazooka Joe wrapper.)
The crux of the school’s argument in the brief is that it didn’t really punish the girls for posting the pictures, it punished them for the activity in the pictures. In other words, the school doesn’t want the right to police the social network sites of its students (an argument that didn’t work in the Third Circuit recently). Instead, it wants the right to police the slumber parties themselves.
Because that’s reasonable and not totally crazy. Right, Principal Austin Couch? Parents need you to be policing what their teenage daughters are doing in their bedrooms.
No matter how they want to sugar-coat it, this is a public school spending thousands of taxpayer dollars to defend the principal’s “right” to police teenage girls’ slumber parties. To paraphrase Ed Murrow, anyone not totally creeped out really doesn’t understand the situation.
And if it wasn’t super creepy — which it is, by the way — this is a district where two schools failed to make adequate yearly progress last year.
And this is how they spend their money. This is your school board, parents of Smith-Green students: schools failing to meet federal standards while the lollipop police run around keeping the world safe for orthodox suckers.
Back to the brief. Another goofy argument, which we’ve seen in a lot of briefs lately, is that courts are supposed to give substantial deference to schools, and therefore, courts shouldn’t analyze what schools do. Or in the words of the brief:
“Because the Plaintiffs were engaged in conduct which the school determined was contrary to the extracurricular code, the fact that the Plaintiffs took snapshots of themselves and posted them on the internet is irrelevant. As such, the Plaintiffs should not be permitted to invoke the First Amendment as a shield for their behavior, and the Defendants are entitled to significant deference in making the determination that the Plaintiffs’ conduct was a violation of the extracurricular code.”
The catch-22 of this argument should be staggeringly obvious, but for anyone struggling with it, let’s say the pictures were of two girls praying in a Catholic church. The school disciplines them for that, and the girls sue. Read the paragraph again: the defense would be no different. Rather than saying the school is entitled to substantial deference in the analysis of its conduct, the brief is arguing that the court shouldn’t even analyze the conduct, because the school is entitled to deference.
“Substantial deference” means getting the benefit of the doubt when the test is applied. It doesn’t mean refusing to apply the test. Public schools still have constitutional obligations, as the schools in Layshock and J.S. learned.
The brief also argues, bizarrely, that the photos aren’t expressive. If the photos had no meaning, I doubt they would’ve gotten Principal Couch off the, well, davenport to appoint himself the head of the P.P.B.I. (Penis-Pop Bureau of Investigation.) (Ha-ha, but it’s your money he’s doing it with, Smith-Green parents.) The ultimate failure of the argument is that, even if the photos did nothing but show the slumber party, if the school’s argument that the activities in the slumber party could be proscribed was anything but a joke, then the photos would be not only expressive, but newsworthy.
All of which is kind of academic, because of course photos are expressive. The message need not be one school officials can understand, let alone appreciate, to contain a message.
Even if we were to say, “yeah, I think districts that aren’t meeting some federal standards ought to spend money making sure girls at slumber parties don’t have the wrong kind of candy,” I’d point out that there already are people in charge of conduct at slumber parties. And even if in loco parentis wasn’t a well-discredited doctrine that never applied to First Amendment speech in the first place, a school can only act in place of the parents where there are no parents.
Whatever the school’s obsession with genitalia candy, respecting parental rights and basic constitutional obligations is a lot smarter and a lot cheaper. A less creepy, less expensive, and less stupid response would’ve been to tell the parents about the photographs and let the parents raise their kids.