Hey kids, want greater First Amendment rights? Try getting arrested!



It's been something of a rueful joke in the free-speech community that the First Amendment rights of students in public schools are on par with those of criminals.

As it turns out, the joke is increasingly unfunny -- because the rights of the criminals may very well be superior.

A pair of recent U.S. District Court rulings, each addressing whether government agencies can retaliate against people for complaining about institutional conditions, illustrates just how low students rate on the federal judiciary's hierarchy.

In Case 1, graduate student Judith Heenan complained on multiple occasions about the unfairness of the grading and disciplinary systems in her nursing program. In response, she alleged, college officials retaliated by issuing her unwarranted disciplinary "strikes" and then ultimately expelling her from the school.

In Case 2, inmate Larry M. Holmes filed multiple grievances complaining about conditions at the Sangamon County, Ill., jail. In response, he alleged, jail officials retaliated by confining him in a bare-bones isolation cell, stripping him nude and ridiculing his manhood, and making him spend nine hours strapped to a chair.

Only one of them -- the prisoner -- was found to have a viable First Amendment claim.

Judge Sue E. Meyerscoff of the Central District of Illinois had no difficulty concluding that, assuming Holmes' description of his treatment proved at trial to be genuine, he would have at least a First Amendment retaliation claim and possibly other constitutional claims against his jailers:

The federal courts have long recognized a prisoner's right to seek administrative or judicial remedy of conditions of confinement ... as well as the right to be free from retaliation for exercising this right. … [Holmes] has a protected right under the First Amendment to file grievances and to speak about the conditions of his confinement.
Judge Myron H. Thompson of the Middle District of Alabama was uninterested in letting Heenan's case go as far as a trial, and summarily dismissed all of the student's claims. The judge simply assumed that Heenan was lying, under oath, about her disciplinary strikes being undeserved and retaliatory:
[O]ne of the traits of a good teacher is the ability to get a student, finally, to stop blaming others (including her teacher) for the bad grade she has received. How teachers grade, and, in particular, how they treat those students who attempt to use gripes about grades and the grading systems as excuses for poor performance, is one of those pedagogical concerns that are at the heart of the teaching profession.
In other words, in Judge Thompson's view, the student is never right and the school is never wrong. Every complaint must necessarily be unfounded, and the complainant must necessarily be a lazy whiner who refuses to accept that her bad grades are deserved. There is, in Judge Thompson's world, no such thing as retaliation against students.

The right to file grievances is one of the few freedoms that courts reliably uphold in the prison setting. When the speaker is not free to leave the property, and the imbalance of power between speaker and censor is severely lopsided, judges recognize that the ability to bring abuses to the light of authorities must necessarily be protected. At least, if the speaker is a criminal. (In another recent case, a federal appeals court in Philadelphia reinstated the dismissed claims of a Muslim inmate who alleged that guards punished him for complaining about anti-Muslim harassment by stripping him of a choice work assignment.)

It is perhaps unsurprising to see that students-versus-school claims receive no more hospitality in the federal courts than inmate-versus-jail cases. For better or worse, the First Amendment rights of students have been lockstepped with the rights of inmates for at least a generation.

In 1987, the Supreme Court decided, in Turner v. Safley, that prisons may enact and enforce rules burdening the constitutional rights of inmates so long as the regulations are "reasonably related to legitimate penological interests."

In its very next term, the Court issued its infamous pronouncement in Hazelwood School District v. Kuhlmeier that schools may control the content of student speech in curricular settings so long as the censorship is "reasonably related to legitimate pedagogical concerns."

The resemblance -- and the pedigree of the Hazelwood doctrine (on which the court relied in dismissing the Heenan case) -- could not be clearer. The relationship of student to school administrator is meant to approximate that of inmate to jailer.

Law professor Aaron H. Caplan has written critically about the judiciary's tendency when dealing with civil-rights claims to equate schools with prisons and jails, and the corrosive mentality that such sloppy reasoning reinforces:

A judicial discourse that analogizes schools to jails cannot help but strengthen the logic that supports the school-to-prison pipeline. The analogy suggests that schools, like jails, are warehouses for a suspect population not entitled to the full rights of citizenship.
But maybe students should embrace the comparison with prisoners. If they could just get the Sangamon County Jail level of First Amendment freedom, they might be better off.

 

 

Tagged: First Amendment
Comments powered by Disqus