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1st Circuit: Sophomore's Post-It Note About “Rapist In Our School" Not Bullying

First Amendment and US Constitution text with legal gavel
By Joseph Fawbush, Esq. on August 11, 2020 3:15 PM

A high school sophomore in Maine posted a sticky note in one of the girls' bathrooms with the words "There's a rapist in our school and you know who it is." School administrators, who became aware of the note shortly after it was posted, investigated. They concluded that the note was targeted to a fellow student who was the subject of rumors regarding sexual assault. The school ultimately suspended the sophomore who wrote the sticky note, saying it violated school policy against bullying.

The sophomore student sued the school, alleging a violation of her First Amendment rights, and sought an injunction to prevent the school from issuing the suspension. The District Court agreed and prevented the school from suspending the student.

First Amendment Rights Under Tinker

The question on appeal was whether the post-it note was protected speech, or whether the school had a legitimate interest in preventing bullying and therefore suspending the note-writer. Under the U.S. Supreme Court case of Tinker v. Des Moines Independent School District, students are entitled to freedom of expression unless schools have constitutionally valid reasons to restrict their speech. An important caveat in Tinker is that speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech."

The First Circuit panel determined, however, that the school had a legitimate interest in preventing bullying. So, the question was not whether the note violated the “material and substantial disruption test," but instead, whether the note was connected to bullying. If it was, the school could suspend her.

School Could Not Show Note Was Bullying

The panel held that the administration could not prove that the note led to bullying. Rumors already existed about the student alleged to have committed sexual assault. Further, the student who wrote the note argued that she wrote the note to school administrators, not about another student. To back up this claim, she pointed to a complaint she filed with the school three months before she posted the sticky note about the school's handling of sexual assault claims.

It may not have been the best way to challenge the school, Judge Sandra Lynch wrote for the panel, but it was by no means clear the note was bullying a particular student. Therefore, the school could not suspend her.

Similar Cases to Come?

There is no indication yet that the school plans to appeal. Regardless, it is unlikely this will be the last case to deal with this issue. With many schools remaining socially distant, social media is likely to continue to play an outsized role in communications among students, for example. It is easy to foresee a similar situation play out online. Can a school suspend a student for calling another student a rapist on social media? Despite holding in favor of the suspended student in this case, it appears that if the school finds the intention is to bully the target of the note, the answer is yes.

Related Resources

45 Years Later: A Look Back at Tinker, Students, and Free Speech (FindLaw's Eighth Circuit)

Free Speech Lawsuits Involving Public Schools (Learn About the Law)

In Massachusetts, Au Pairs Must Be Paid State Minimum Wage (FindLaw's First Circuit)

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