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.
