A student, H.W., has sued the Sterling High School for discipline involving a "banishment" from the prom, senior trip and commencement. The punishment came as a result of a "tweet" calling the high school principal a "pussy ass bitch." H.W. asserts that she has "oppositional defiant disorder" (ODD), and that this conduct by her was a consequence of that disorder (somewhat similar to an outburst linked to tourettes syndrome). Moreover, and notwithstanding the argument about disability, the student also claims that she has a constitutional right to tweet what she would about the principal.
As a civil rights lawyer, I'm conflicted about this, as I usually am when I'm dealing with issues involving schools. I've blogged about this many times before. The abusive tweet by the student - and without knowing the student, I don't know her mindset, but on its face, of course, the remark is abusive by any standard - came as a result of discipline to which H.W. was subjected for breaking school rules.
So let's talk about the two issues separately.
With regard to disability discrimination, the law requires schools to provide "reasonable accommodation" to a student with a disability. There are lots of wrinkles to the argument that H.W. makes concerning ODD.
First, the "spectrum" of "disorders" which includes aspergers, social adjustment disorder, anxiety disorder, oppositional defiant disorder, attention deficit disorder, and attention deficit-hyperactivity disorder (as well as other disorders) continues to be an emerging area of medical science. There's no discrete "test" that says, either positively or negatively, that a particular student is or isn't affected by one or more of these disorders. As with many diagnoses that intersect with mental health and behavioral health, the diagnosis is often made clinically rather than diagnostically. Until the day comes when a genetic marker or some other definitive test is able to verify which students truly have these disorders and which do not - and how much the student is affected - then it will continue to be clinical guesswork as to whether or not, and how, the disorders manifest, and what they compel the students to do. It can frustrate parents and families, it can certainly frustrate school officials who are never quite sure how to deal with these situations, and it certainly frustrates, most of all, the kid affected.
So let's not debate whether or not ODD is real. Let's instead talk about what the school should be doing about it.
Because ODD is a behavioral disorder, it's almost impossible to determine when particular behavioral events are substantially "linked" to the disorder, versus not. How is anyone supposed to know that, when there's no test that even verifies that this order pertains, and to what degree it pertains?
Even assuming that the conduct is linked to ODD, I'm concerned about the "dual approach" taken in the case, where an argument is being made about free speech rights and constitutional law, in addition to disability. As well concerning is the fact that the child has demanded an "apology" from the school. If the kid is truly affected by ODD, then one would assume that when the ODD "episode" passes, the kid is able to realize some degree of remorse or responsibility or accountability - not as much as child unaffected by ODD, perhaps, but some - and yet the demanding of an apology feels to me like the conduct was quite purposeful and not necessarily a product of ODD. It's certainly an inference which can be drawn. Obviously, again, I have no idea what the facts are in the case and I'm certainly not criticizing either the student or the attorney, but it's a question that occurred to me when I read about this lawsuit.
Secondly, let's talk about the Constitution. The Constitution guarantees free speech. Two recent decisions from the Federal Third Circuit (the Federal Circuit that includes New Jersey) speak about the sanctity of free speech rights over the right of the school to discipline a student for disruptive conduct linked to speech. One of these decisions is called J.S. vs. Blue Mountain School District, 650 F. 3d 915 (2011). A student wrote in social media that her principal was a "fag ass" and a "sex addict" with a "small dick." Yet this took place off school grounds and on the student's own time. The school attempted to punish the student and the student objected. The decision, ultimately, was to prevent the school from punishing the student because off-campus speech that is not school-sponsored or at a school-sponsored event and that causes no substantial disruption at school is protected speech.
Incidentally, that issue about "non-disruption" is certainly the lynchpin when dealing with student v. student bullying situations, too. When a student acts off campus (for example, on social media) to castigate, in a discriminatory way, another student, that conduct, even though it takes place on social media outside the school, can create a substantial disruption for the victim in school, and the school can punish that conduct, even though it's not at a school sponsored event or undertaken on school grounds.
The second decision is Laycock vs. Hermitage School District, 650 F. 3d 205 (2011). In that case, a student wrote on their MySpace account that their principal was an abuser of marijuana, pills and alcohol. The court again suggested that it would be a "dangerous precedent" to allow discipline of the student when the conduct took place off school grounds, not at a school sponsored event, and did not cause "substantial disruption."
It's never easy juxtaposing free speech rights for other Constitutionally protected liberties against the obvious exigency of problems caused by exercise of those protected rights.
So let's put the disability issue for H.W. aside and look at this purely as a Constitutional question. Did the student act in a way that allows the student to obtain the protection of the J.S. and Laycock decisions?
I think that they do apply. I think the student's conduct, while clearly deplorable, is still protected free speech. Even if the disability argument fails - and I think it probably will, because it'll depend upon pinpointing particular behaviors originating from a disability which defies pinpointing - the Constitutional argument will apply.
Yet, even as a Constitutional scholar and civil rights lawyer with a domestically "progressive" set of ideas, there comes a point where a student - or anybody - has to be sensible and accountable about what they do. Just because Constitutional rights exist doesn't mean that one should tread up to the line and exercise those rights simply for the sole purpose of self-gratification, or to anger or upset another. I would never argue that someone should be legally barred from doing just those things, because if we start to make moral judgments about why someone exercises their Constitutional right, then they're no longer Constitutional rights at all, but I'll certainly teach my son that there are times and places to exercise "free speech," and there are times when one ought to shut up.
That said, I applaud my colleague's initiative in protecting the student's Constitutional rights, because Constitutional rights are never popular when they irritate others. The job of the civil rights lawyer is to advance that cause. The law firm representing H.W. is a good one and is doing the right thing. It's lonely work, but the best way to be a lawyer I know.