We all know that, as the Supreme Court once held, students do not shed their constitutional rights at the schoolhouse door. Still, it can be difficult to distinguish between constitutionally protected student speech and insubordination. The federal district court’s decision in K.B. v DeKalb County School District, Case No. 18-5201 (April 29, 2019) provides a good example of a close call resolved in the student’s favor by the court.
The backstory involved well-publicized friction between the community and the new high school principal, Mrs. Braaten. The plaintiff, student K. B., jumped in by creating and distributing about three dozen stickers to his classmates featuring a picture of Mrs. Braaten superimposed on an American flag with a caption reading, “Fire Braaten.” Mr. Spears, the assistant principal spent about half a day dealing with the issue, including collecting the stickers, disciplining the students who posted them and issuing the plaintiff a one-day in-school suspension for “disruptive behavior.” Otherwise, the stickers and the students wearing them did not create any disturbance. Yet, in the past, students had not been punished by, for instance, wearing stickers and buttons supporting school teams and political candidates. Nor had students be punished for wearing “vulgar” t-shirts supporting the school’s football coach.
The district court, considering these facts as established, denied the school district’s motion to dismiss the plaintiff’s claims the school district and its official had interfered with his First Amendment rights. The district court emphasized the following points: the school district did not establish the student’s expressive conduct caused, or was likely to cause, material or substantial disruption, regardless of Mr. Spears’ inconvenience; the stickers were not lewd or vulgar; and, in the court’s view, the insubordination implicit in the stickers was not sufficient to justify punishment. The district court also noted that, even if there were a legitimate question about the propriety of the message expressed, the school district was not in a position to impose discipline because, in the past, it had permitted similar forms of expression. Put differently, once the school district had opened its hallways to expressive activities it could not close them on the plaintiff because it did not like his message.