Student gay-rights advocate loses initial legal challenge, but makes some favorable First Amendment precedent



A federal judge has refused to reinstate an Atlanta-area student government leader who was removed from office after pushing to open the competition for "prom court" to same-sex couples -- but the ruling is hardly one for Reuben Lack's school, or any school, to celebrate.

U.S. District Judge Richard Story found that school administrators overstepped the First Amendment multiple times in punishing Lack -- a senior at suburban Alpharetta High School -- for the content of his speech, including his criticism of Principal Shannon Kersey in a Facebook chat with a friend.

Story concluded, however, that the school's decision to strip Lack of his post as student body president was motivated by other factors, including failing to follow through on assigned tasks and skipping a meeting, that were unrelated to speech. Because those other motivations were the decisive ones, Story refused to grant Lack the drastic remedy of a temporary restraining order forcing the school to reinstate him as president for the rest of the school year.

In a 12-page order viewable here, Story ruled that several of the reasons the school gave for unseating Lack from office were based on the content of his speech, and therefore impermissible under the First Amendment. They included:

  • Giving a speech to incoming freshmen in which he interjected an endorsement of the debate club, his personal pet project.
  • "Vilifying" Kersey in an off-campus Facebook discussion with a friend. (It isn't clear whether the Facebook exchange was publicly viewable or, if not, how the school came into possession of it. The exchange was exceedingly mild, with no name-calling -- it merely said that Kersey "shot down" one of Lack's proposed activities and "refused to give him school time" for it.)

Story also found that it appeared Lack was punished in part for advocating a gender-neutral "homecoming court" that could include a same-sex couple, instead of the traditional "king" and "queen." If so, the judge found, that would be a constitutionally impermissible reason -- but he was unable to make a firm ruling, because the reasons the school provided were so garbled that some couldn't be understood.

Lack filed suit March 20 in the U.S. District Court for the Northern District of Georgia against the Fulton County school district, Kersey, and two student government faculty advisers, Emily Reiser and Michelle Werre. The suit alleges that the school "sought to punish Lack for advocating his position on issues of student concern, and sought to restrain his ability to advocate for those positions in his elected capacity(.)"

Friday's ruling, while a setback for Lack, is on balance a favorable one for student rights in several important respects.

First, Story found that simply giving a speech to first-year students that went slightly "off the reservation" of administration-approved topics was not a punishable offense -- even under the most school-deferential of First Amendment standards, the Hazelwood standard.

Hazelwood permits schools to censor for any legitimate educational basis if speech is part of a "curricular" activity -- which almost invariably means that the student will lose and the school will win. But Story found no educationally valid basis here: "[T]he Court finds that this speech in no way infringed on pedagogical concerns, and in fact advanced them as it encouraged students to find their niche in high school and to get involved(.)" That a student's First Amendment claim can survive a Hazelwood analysis is an enormously important cautionary point for school attorneys, who have regarded Hazelwood as a green light to censor at will.

Second, Story ruled that the loss of a prestigious student government office was a sufficiently severe penalty that -- if based on the content of legally protected speech -- it could support a viable First Amendment claim.

If the government punishes a speaker for legally protected speech, in a way that would deter an ordinary person from speaking again, then the punishment is severe enough to violate the speaker's constitutional rights, no matter what form the punishment takes. Too many courts have refused to place any constitutionally significant value on participation in extracurricular activities, and have taken the view that any penalty shy of actual removal from school is too insignificant to violate the First Amendment.

For instance, a panel of the Second Circuit U.S. Court of Appeals suggested in a preliminary ruling in Doninger v. Niehoff that removal from an elected class office was, by itself, insufficiently severe punishment upon which to base a First Amendment claim. (In a later ruling, the court ultimately ducked the First Amendment issue and threw out the student's case on other grounds.)

Story's ruling is the legally sounder view. When a school "fires" an outspoken student agitator from office, the school clearly hopes and expects that the action will silence the troublemaker, and -- in an era of ultra-competitive admissions, in which a fractional grade-point can be decisive -- it is not farfetched that a student with a disciplinary blot on his resumé might be deprived of his first-choice college opportunity.

Even though Lack no longer has any realistic hope of reclaiming office before the school term ends, Lack's attorney, James Radford, told the Atlanta Journal-Constitution that the lawsuit will continue (a point he amplified on his personal blog). Lack may be entitled to money damages and attorney fees, even if he is no longer eligible for reinstatement.

The case is Lack v. Kersey, No. 1:12-cv-00930.

 

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