Monday, June 28, 2021

The Courts Have Been Busy: Education Edition


Three court cases, all tied to education in some way, all of them (go figure!) showing the school to be at fault in ethical but not necessarily legal terms.  Let’s take them in chronological order by decision date.

First up: Sexual assault on the band bus.

In March of 2017, “Jane Doe,” then a junior at Oakton High School in Vienna, Virginia, traveled as a member of the school’s symphonic band to a music festival in Indianapolis.  As it happens, “Jack Smith,” a senior, sat next to her, said he was cold, and asked to share her blanket.  The blanket then covered them both.

As to what exactly happened next, there is some dispute, but Smith ultimately admitted to sticking his hand up Doe’s shirt and touching her breasts; he denies Doe’s allegations that he also put his hand down her pants and penetrated her vagina with his fingers or that he forced her hand onto his penis.  Doe claims that all of this was non-consensual, and told friends about the incident upon arrival in Indianapolis.

These friends then told school administrators.  What happens thereafter is a little confusing to sort out, but it is certainly noteworthy that, in the words of the decision of the 4th Circuit Court of Appeals, “school  officials—including  Assistant  Principal  Michelle  Taylor, who accompanied the band to Indianapolis—took no action regarding these reports during the trip, and they did not speak to either Doe or her parents about what had happened on the bus ride.”

Doe subsequently was called into the principal’s office, where she described her experience.  After what appears to have been a rather cursory investigation, Principal John Banbury and Assistant Principal Jennifer Hogan decided that “the evidence that [they] had didn’t show that [they] could call it a sexual assault.”

OK, stop right there.  WHAT???  The boy admits he put his hand up the girl’s shirt.  Even if the rest of the allegation is fabricated, that’s enough, isn’t it?  So, the only question is consent.  This is an important point, of course.  It isn’t assault if Doe complied willingly.  She says, admittedly rather obliquely, that she didn’t “think it was consensual,” and school officials grant that such a statement suggests that consent was absent.  There’s nothing in the court decision to suggest that Smith argued that point.  Surely there’s enough there to suggest that it could (!) be called a sexual assault.

Moreover, Doe suffered some pretty significant after-effects of the incident, sought and received professional help, and was diagnosed with adjustment disorder with anxiety.  Her symptoms, which would be pretty damned hard to fake for a long period of time, lasted even after Smith graduated.  Her attendance record and grades both plummeted.  Curmie is neither a cop nor a psychologist, but this evidence seems rather compelling, does it not?

Things get a little more complicated here.  Doe clearly received accommodations from the school, or at least from individual teachers: she continued in band class by “sitting in a small private room by herself,” for example.  On the flip side, Principal Banbury admits to making a crude joke about the incident.

Anyway, Doe and her parents sued the school for “deliberate indifference” leading to a “deprivation of access to educational opportunities or benefits.” If Curmie understands correctly, this takes several forms: not offering assistance to Doe when the incident was first reported on the trip per se, not punishing Smith in any way (meaning, in effect, that he was allowed to continue in band but she, because of Smith’s presence, could not), the principal’s lewd joke, etc.

From the court decision again:

The jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school.  However, the jury also found that the School Board did not have actual knowledge of the alleged sexual harassment.

Again… what?

The fact that the school didn’t take the allegation seriously is evidence that they didn’t hear about a claim that any reasonable person would regard as a claim of sexual harassment as defined by Title IX?  Well, sort of.  The dissenting judge in this case argues that the school was not responsible for a single incident (as they would have been had a pattern developed), and that they did what they could to prevent further incidents, which is all that is required.

This may be true under the law (insert obligatory “Curmie isn’t a lawyer” statement here), but it sure seems that the school’s response was late, superficial, and half-hearted.  And the lack of any punishment for Smith suggests, well, indifference on the part of the school.  Count Curmie with the majority on this one.

Next: Extended choke holds are OK if they’re disciplinary (!?!)

The idea of legal precedent is, to use the grad school word, vexed.  It’s certainly a good idea to make the law consistent, so that similar events are treated the same way.  But when the precedent itself is faulty, all that happens is that injustice multiplies.  Yes, there are occasions in which the Supreme Court will overturn a previous ruling (Brown v. Topeka comes to mind), but such instances are rare, and can occur only at the SCOTUS level.

But really the reliance on precedent is little (if indeed anything) more than a “we’ve always done it this way” argument.  Regardless of the specific circumstances, such a position is sufficient to maintain the status quo in the absence of a demonstrably better alternative, but not to continue down the same path out of habit when there are such superior options.

All of which brings us to the case of T.O. v. Fort Bend, recently decided by the 5th Circuit Court of Appeals.

Here are the basics: T.O. is a child with ADHD and ODD; he was therefore provided a behavioral aide and a Behavioral Intervention Plan.  One day in 2017, T.O. was acting up in class, and his aide removed him from the room and told him to stay in the hall until he had calmed down.  So far, so good, right? 

Enter Angela Abbott, a teacher who came upon the scene by chance.  Here’s the description from the court’s decision:

Although T.O.’s aide explained that the situation was under control, Abbott positioned  herself between T.O. and the classroom door while he yelled that he wanted to return to class. In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg.  Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes [emphasis added].  During that incident, Abbott yelled that T.O. “had hit the wrong one” and needed “to keep his hands to himself.”  She released T.O. after his aide asked Abbott “to release him...  because he needed air and she was holding him the wrong way.”

Ms. Abbott was, according to the court document, “never fired or disciplined in any way.”  Not surprisingly, T.O.’s parents were less than pleased at Abbott’s actions, and they sued her and the school.  But the court threw out the complaint because teachers have qualified immunity (the same concept that protects a handful of good cops and a plethora of bad ones), and the action occurred “in a disciplinary context.”

More specifically, there’s all this precedent [footnotes omitted]:

…we have consistently dismissed substantive due process claims when the offending conduct occurred in a disciplinary, pedagogical setting. For example, we dismissed substantive due process claims when a student was instructed to perform excessive physical exercise as a punishment for talking to a friend; when a police officer slammed a student to the ground and dragged him along the floor after the student disrupted class; when a teacher threatened a student, threw him against a wall, and choked him after the student questioned the teacher’s directive; when an aide grabbed, shoved, and kicked a disabled student for sliding a compact disc across a table and when a principal hit a student with a wooden paddle for skipping class.

Wait.  What???  Putting a kid in a chokehold for “several minutes” is permissible because all these other things were?  What if—stay with me here, Gentle Reader—those other things weren’t acceptable.  What if grabbing, shoving, and kicking a disabled student for sliding a CD across a table isn’t a good idea?  What then?

Surely it’s important for government employees—police, teachers, whatever—to have some limited authority to protect themselves, and to use some amount of physical force pre-emptively under certain circumstances.  But all of these examples suggest an egregious over-reaction that cannot be supported as ethical… of course, the court may be absolutely correct in legal terms (insert obligatory “Curmie isn’t a lawyer” disclaimer again), but the extent of qualified immunity protections must be limited somehow, if not by the courts, then by the legislature.  

Of course, this is Texas we’re talking about, and expecting the politicians to clean up the mess they’ve helped to create is rather like expecting a toddler to scrub the floor after dumping his chocolate pudding (or something else of that color and general consistency) all over it.

Finally: Schools can’t control students’ entire lives.

This one went all the way to SCOTUS, who rendered a pretty convincing 8-1 decision in the case of Mahanoy v. B.L., providing a clear indication that schools’ ability to control the off-campus activities of students is limited, and that off-campus speech (short of incitement, slander, or conspiracy) is protected.

B.L. was a freshman at Mahanoy Area High School in Pennsylvania in 2017.  She tried out for both the cheerleading squad and the softball team that spring; she was offered a spot on the J.V. cheerleading squad, but not the varsity.  It’s unclear what happened with softball, but she didn’t get what she wanted.

The following weekend, she posted on Snapchat a photo of herself engaging in the monodigital salute, with the caption “Fuck school fuck softball fuck cheer fuck everything.”  Not the most linguistically elegant of phrasings, to be sure. 

Be it noted: 1). the post was made from a convenience store, not school property, 2). B.L. used her own phone, not a school-owned device of any kind, 3). she was not in a cheerleading uniform, nor did she mention the school or any individual by name, 4). the post was made on the weekend on a platform on which posts are “live” for only 24 hours, so it’s unlikely school would have even been in session when the message was still available, 5). access to the post was limited to her Snapchat friends, not to the general public.

But, alas, one of those alleged friends narked on her, and because she had used profanity, she was barred from participation on the cheerleading squad altogether for a year.

Any rational being would follow something like the following thought process: she’s 14 or 15 years old; she’s upset; she’s venting to her friends; she’s not doing anything disruptive or illegal; she is not the first teenager to use phrasing derived from the Anglo-Saxon, nor will she be the last; she has 1st amendment rights and doesn’t surrender them unless there’s a specific and significant reason why she should.

All this, of course, would be contingent on the cheerleading coach, the principal, and various other powers-that-be having a little maturity, a little discretion, and a little respect for both a student and that short document known as the Bill of Rights.  But, as you know, Gentle Reader, these are school administrators, and there’s a teenaged girl to push around… the temptation is irresistible.

B.L. and her family sued, and won at the Appeals Court level.

The right of students to say and do what they please when not on campus, representing the school in some formal capacity, or overtly attempting to interfere with the operation of the school is, or at least ought to be, inviolate as far as the school is concerned.  Obviously, this right does not apply to illegal activities, but it’s not the school’s business to enforce the law: that’s why we have police forces.

Curmie has been saying this for years, just in this iteration of blogging: we can start chronologically with Emma Sullivan, who tweeted in 2011 than Kansas Senator Sam Brownback “sucks,” capping it off with the hashtag “#heblowsalot.” She was ordered to write letters of apology to all and sundry.  (She didn’t comply.  Good for her.)  Most recently, there was Hannah Watters, a Georgia high schooler whose photograph of the hallways in her school during changeover (lots of unmasked, tightly bunched students during the pandemic), posted outside school hours, went viral, and who was given a five-day suspension for what can only be called fanciful reasons.

In between, there were stops in Illinois, Indiana, California, Minnesota, and New Hampshire.  Clearly, this isn’t a red state/blue state distinction.  The desire on the part of school administrators country-wide to control literally every aspect of their students’ lives (especially if those students might possibly say something uncomplimentary about those administrators or others in power) is nearly universal.  This is why SCOTUS’s ruling that students have 1st amendment rights, too, (and the unanimity of the decision except for a very bizarre dissent from Justice Thomas) is so important.  There’s a lot there, but the most important part of their decision, from where Curmie sits, at least, is this:

…from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.  That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.

Yeah, what they said.

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