Recently, a US District Court judge entered a partial judgement in a fascinating First Amendment case that involved school prayer, a student tweeting “ITS WAR BITCHES” [sic], and a song featuring the lyrics, “She kept looking at her watch/Doesn’t matter, had sex/But I cried the whole time/Doesn’t matter, had sex.”
The case, Ryan v. Mesa, was filed in May 2014 on behalf of a group of students who attended Mountain View High School in Mesa, Arizona. The plaintiffs, including Sydney Ryan alongside two unnamed minors, were members of the Mesa High softball team in 2014 when, they contend, their coach removed them from the team in violation of the Establishment Clause and of their right to free speech.
Student-speech cases typically involve speech that is either inside the school building (and hence subject to a well-trod set of First Amendment standards refined over the past half-century) or speech entirely outside of school on personal communication devices (and hence subject to a confusing train wreck of contradictory legal precedent that’s been evolving since the dawn of the flip phone). But this case inhabits the murky gray zone of the school field trip – specifically, a music CD meant to be played on a bus ride to a road game.
The case is still ongoing and the plaintiffs declined to comment, but their attorney, Robert Trop, spoke with me about the finer points of this entertaining, if troubling, lawsuit. Speaking to the split decision, Trop said he felt the judge made a fair decision.
On July 19, Senior U.S. District Judge John W. Sedwick dismissed the two free speech-related counts (concerning the tweet and the mix CD), but left the issue of team prayer and its possible violation of the Establishment Clause open for further argument.
Trop acknowledged the free-speech complaints weren’t as strong as the Establishment Clause count, and while he and his clients would have liked to see those two counts prevail, they accepted the court’s finding.
The plaintiffs allege that their coach, Joseph Goodman, dismissed them from the softball team in retaliation for discontinuing team prayers, playing a racy mix CD during a team trip, and sending a misconstrued tweet.
On the subject of the mix CD, a compilation created for the road trip to a softball tournament in Tucson, the court agreed the contents of the CD were “lewd” and that the coach was within his authority to restrict its playing during a school-sponsored trip.
One song of particular note was The Lonely Island’s “I Just Had Sex” (a link that under no circumstances should you click right now on a workplace or school computer). The band responsible for “Dick In a Box” and “Mother Lover” penned the song as an ode to “…them girls/That let us flop around on top of them”
Jokey descriptions of coitus aside, the singer assures the listener that it was, “The best 30 seconds of my life.”
For the record, most Lonely Island songs would be considered not-safe-for-work (or for school, as it happens). “Jack Sparrow” seems like a goofy, innocent tune until it gets to the end and Michael Bolton starts channeling Tony Montana.
The Supreme Court precedent on which Judge Sedwick relied, Bethel Area School v. Fraser, was about a “lewd” speech delivered during a mandatory-attendance school assembly, and it’s by no means undisputed that Fraser applies to speech outside of that “captive audience” setting – but the court regarded the bus trip as an extension of the school day governed by in-school legal standards.
More critically, the judge found that Goodman had “qualified immunity” insulating him from First Amendment liability to the extent that his disciplinary action was based on the “ITS WAR BITCHES” tweet. Goodman argued that he and several of the other softball players felt the tweet was an attack on the plaintiffs’ teammates.
The girl who authored the all-caps, “shouty” missive to her more than 250 followers revealed she was good-humoredly live-tweeting a dustup between the Ryan sisters in which one of the girls slapped a Starbucks coffee out of the other’s hand – certainly not leveling a threat or trying to incite violence.
I’m a big enough person to admit to feelings of inadequacy that a teenager has more Twitter followers than I do.
The opinion states that the tweet was sufficiently aggressive, regardless of its aim, to cause a credible concern for Goodman and the coaching staff. As such, Judge Sedwick decided, Goodman was neither knowingly violating a constitutional right nor “plainly incompetent” in reading the tweet as an attack and anticipating a significant disruption.
Again, it’s far from settled that “disruption” is the trigger for school disciplinary authority when students are speaking off-campus on social media. “Disruption” is where the Supreme Court drew the line for in-school speech in its 1969 Tinker case, but students almost certainly have more freedom to speak when they’re not participating in school functions on school grounds. Cases like Ryan are blurring that boundary in potentially dangerous ways for school critics and whistleblowers – and for fans of NSFW music.
Overall, we find the decision troublesome. The decision to award the coach qualified immunity – which means, legally, that a reasonable person in his position wouldn’t have known whether the tweet was or was not protected speech – punts the important underlying First Amendment issue without giving guidance to future decision-makers in the coach’s position.
If courts just keep throwing up their hands and saying “oh well, it’s confusing,” then the law will remain confusing – and students will be the victims of that confusion, since all benefit of the doubt goes to the disciplinarian. Social media is devoid of context and susceptible to misunderstanding, especially by people a generation removed from the intended audience.
More should be expected of disciplinarians than “when in doubt, punish.” That is especially true when, as in this case, the disciplinary action doesn’t involve an on-the-spot judgment call to de-fuse an unstable violent situation – in fact, no violence occurred on the road trip, and the punishment did not occur until after the trip was completed, without incident.
Trop expressed a great deal of respect for the students in pursuing the issue as long as they have. Students must contend with with well-funded attorneys representing local school districts in lawsuits that drag on for what feels like an eternity – this case has been pending 27 months and still hasn’t reached a final decision, let alone an appeal – and the adversarial process can wear students down and create a “pile-on effect.”
As an example, he described the numerous affidavits by the other students on the team in support of the coach that were presented by the defense – saying he doubted most, if any, of the students approached the school district of their own accord to submit their written accounts. (In other words, the school almost certainly created greater divisiveness and animosity among the students by its aggressive litigation tactics than any tweet ever could have.)
For now, the issue of a potential violation of the Establishment Clause is still undecided. The court has yet to conclude whether the coach endorsed the team prayers and, if so, whether he dismissed the plaintiffs, in part, because of their decision to discontinue the prayers.
We can only hope for greater discussion and a shift in understanding when schools overstep their authority in restricting students’ constitutional rights. We can accept the current defense of “they didn’t know any better” when a government employee cracks down on free speech, or we can reassess the standard.