When the government sets out to punish someone for speaking, it doesn’t much matter what the punishment is. Even something as insignificant as canceling an employee’s birthday party, the Supreme Court has told us, can constitute illegal retaliation if it’s meant to deter disfavored speech.
But when the speaker is a student and the regulator is a school, the severity of the punishment can be decisive. “Just a little” retaliation gets a tolerant judicial wink, legitimizing wrongdoing that wouldn’t be tolerated from any other government authority figure.
Courts have sloppily – or mean-spiritedly – departed from settled First Amendment doctrine when bending over backward to rule in favor of school authorities. If you listen closely, you can hear the exasperated sighs of judges desperate to keep their courtrooms from becoming a venue for the grievances of passed-over cheerleading aspirants.
Federal judges have been willing to countenance the retaliatory removal of students from sports teams, from student government offices and, yes, from cheerleading squads even when it’s undisputed that the student was a whistleblower challenging authority figures – exactly that speech that, outside of school, the First Amendment most strongly protects.
So when a judge finally gets it right, that’s cause for celebration – even, dare we say it, for cheering.
In a recent Texas case, U.S. Magistrate Judge Christine Nowak decided that a student whistleblower can bring a First Amendment claim even though his only injury was being benched from his high-school baseball team.
The case, Wright v. Denison Independent School District, began when a Denison high school baseball pitcher (referred to in court as “B.W.” because of his age) reported his baseball coach for a series of unprofessional remarks. B.W. told his parents, who then told school authorities, that B.W.’s coach urged the pitcher to cheat by lubricating the baseball and made crass sexual remarks about B.W.’s mother.
The family’s lawyers allege that, rather than taking any curative action, Superintendent Henry Scott threatened to kick B.W. off the baseball team for “causing trouble” with the coach. B.W. was removed from his starting pitching role and denied an award he had earned as the team’s outstanding pitcher, the lawsuit alleges.
In the view of (too) many courts, B.W.’s injury would be too immaterial to support a First Amendment claim. Particularly where it involves playing time on a sports team, judges hesitate to wade into subjective coaching decisions that may involve intangible considerations of team harmony and morale.
But Nowak resisted the easy opportunity to punt the case, not to mix the sports metaphors too badly.
In an April 19 opinion, she found not only that a student can sustain a First Amendment claim by demonstrating that the lost opportunity to play a sport was meant to punish non-disruptive speech, but that the right is so clearly established that school officials should have known it at the time. Hence, if the cause-and-effect chain of events is proven, Denison school authorities cannot escape liability by insisting that the legality of their behavior was uncertain, the judge found:
Under the circumstances, the Court finds Plaintiff’s First Amendment rights were clearly established when the events underlying Plaintiff’s complaint occurred, as was the law prohibiting retaliation against students who exercise those rights, and reasonable officials standing in the shoes of the individual defendants would have known their actions and/or inactions violated Plaintiff’s constitutional rights.
In a May 24 order, the U.S. district judge assigned to the case, Amos L. Mazzant III, adopted the magistrate court’s disposition of the First Amendment issues, so the Wright family will get to proceed with its retaliation claim.
The Wright case is worth careful watching, for its potential to correct an injustice in the law that has emboldened schools to retaliate against speakers without fear of consequences.
The First Amendment caselaw is clear that any retaliatory act that (a) is intended to inhibit speech, and (b) would actually inhibit a reasonable person from speaking, is sufficient to sustain a constitutional claim, even if that harm isn’t as concrete as being fired from a job or expelled from a school. When a school withdraws eligibility for extracurricular activities as punishment for whistleblowing speech, the school plainly is sending a message — to that speaker, and to the entire school community — that complaining is regarded as a punishable offense leading to the loss of a potentially irreplaceable college credential. Particularly with schools asserting jurisdiction over students’ social-media speech during their off-hours, it’s essential for the courts to get this one right, and to recognize that the loss of extracurricular privileges is a significant injury worthy of constitutional redress.