PACIFIC LEGAL FOUNDATION

 

June 6, 2017

VIA EMAIL: 
AND FIRST CLASS MAIL

Dr. Mark J. Rendell, Superintendent

School District of Indian River County

6500 57th Street

Vero Beach, FL 32967

Re: .P. Krause
Dear Superintendent Rendell:

Paci?c Legal Foundation represents John Krause, a student at Vero Beach High School.
On April 25, 2017, .P?a candidate for senior class President?gave a short, teacher-invited
campaign speech in his Advanced Placement US. History class. The next day, while .P.
attended a national academic competition on behalf of VBHS, the school held the election. .P.
won. He won the school presidency. A moment any parent would celebrate, and a moment any
school administration would normally honor. But not this time.

Although J.P. won according to VBHS rules, the school administration re?lsed to honor the
results of the election. Instead, it punished him for his short, humorous, in-class campaign
speech. School rules do not forbid the use of humor in campaign speeches, and his teacher did
not object to the content of speech. Yet remarkably, in response to the First-Amendment
protected speech he gave in class, the school?s administration punished J.P. with detention and
disquali?ed him ?'om the presidency. The administration falsely claimed that he harassed his
fellow student candidate.

In a country that holds its voting rights sacrosanct, not to mention its First Amendment rights, it
is surprising that the school decided to disqualify an election winner because of pure political
speech. It?s likewise surprising that the school would disregard the voting rights exercised by the
students of the school, who voted for .P. only to ?nd their intentions entirely disregarded by
VBHS school administration.

What lesson does the school?s response teach .P. and his classmates about free and fair
elections? What lesson did it teach them about the First Amendment?

In recognition of First Amendment rights, and in respect to the student voters at VBHS,
PLF respect?illy requests that the School Board reinstate J.P. as Vero Beach High School?s
Student Body Senior Class President and eliminate from record any mention of a
disciplinary action involving ?harassment.? We make this request because the laws demand
nothing less. The Constitution is on our side.

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Dr. Mark J. Rendell
June 6, 2017
Page No. 2

I. Punishing .P. for His Speech Violates the First Amendment

The First Amendment protects speech that might offend others. In Tinker v. Des Moines
Independent School District, 393 US. 503, 512 (1969), the United States Supreme Court
recognized ?neither students nor teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.? The Court held that a school may not censor a student?s
speech unless it caused a substantial disruption of, or a material interference with, school
activities. speech caused no substantial disruption of, or material interference with school
activities or the rights of other students. His speech simply asked his fellow students for their
support in the upcoming student election.

To be sure, if a student gives a speech that is lewd, vulgar, or profane, then the school can
sanction him. See, Bethel School District No. 403 v. Fraser, 478 US. 675 (1986). But that is

not remotely the case here.

speech did no more than involve light?hearted humor by associating his opponent in
satirical manner with current political and cultural events. His speech directly referenced national
political campaign topics, such as Communism, raising taxes, and President Trump?s stated
intention to build a wall on our country?s southern border. Nobody could have taken his
comments seriously; that is, no reasonable person believes his fellow candidate for the
Presidency is a Communist, wants to raise the students? taxes, or favors Sebastian River High
School rather than her own high school. Yet VBHS Principal Shawn O?Keefe claims in an email
to mother that speech violated the harassment policy because he ?publicly
humiliated? his opponent. Accepting that preposterous claim for the sake of argument, the
Supreme Court has held time and again, both within and outside of the school context, that the
mere fact that someone might take offense at the content of speech is not suf?cient justi?cation
for prohibiting it. See Tinker, 393 US. at 509. As subsequent federal cases have made clear,
Tinker requires a speci?c and signi?cant fear of disruption, not just some remote apprehension
of disturbance. Here, we have no fear of disruption, let alone a speci?c or signi?cant fear.

II. The VBHS Code of Student Conduct Handbook
Violates the First Amendment as Overbroad

speech in no way singled out his fellow student candidate for her appearance, abilities,
gender, race, creed, religious beliefs, or sexual orientation. Nor was it ?deeply offensive.? It did
not interfere with her educational performance, educational opportunities, or educational
bene?ts. Yet the school claims that his speech amounted to harassment. The school?s de?nition,
and its application of that de?nition here, violates the First Amendment.

The Student Handbook broadly de?nes harassment as ?any threatening, insulting, or
dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct
directed against a student or school employee that: 1) Places a student or school employee in

Dr. Mark J. Rendell
June 6, 2017
Page No. 3

reasonable fear of harm to person or damage to property, 2) Has the effect of substantially
interfering with a student?s education performance, opportunities, or bene?ts, 3) has the effect of
substantially disrupting the orderly operation of a school.? Handbook at 30-31.1

The relevant language here is ?verbal conduct. . . .directed against a student.? Of the three
possible outcomes listed by the de?nition, the ?rst and third plainly do not apply here. Thus the
only conceivable outcome that the school could be alleging here is the second?that the alleged
?harassing? speech ?has the effect of substantially interfering with a student?s educational
performance, opportunities, or bene?ts.? This forbidden effect is the broadest of the three, the
only one that could even conceivably be read to bar ?publicly humiliat[ing]? another student.

The policy?s broad ban on ?verbal conduct? is unconstitutional, both on its face and as applied
here. We know it is unconstitutional, because a US. Supreme Court justice has said the same
about a similar school policy. In Saxe v. State Coll. Area Sch. Dist, 240 F.3d 200 (3d Cir. 2001),
the US. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel
Alito, struck down a school district?s harassment policy as overbroad, holding that even speech
that is de?ned as ?harassing? may enjoy First Amendment protection.

In Same, Judge Alito wrote that the school?s harassment policy improperly swept in those ?simple
acts of teasing and name-calling? that had previously been held to be protected by the First
Amendment. The policy?s language in that case barred speech that has the ?purpose or effect of?
interfering with educational performance or creating a hostile environment. It ignored the
constitutional requirement that a school must reasonably believe that speech will cause actual
material disruption before prohibiting it. Judge Alito explained that even if the speech created a
?hostile environment? that ?intrudes upon . . . the rights of other students,? it is not enough that
the speech is merely offensive to some listener, because ?there is no categorical ?harassment
exception? to the First Amendment?s Free Speech Clause.

The school?s harrassment policy?like the one at issue here?had no threshold requirement of
pervasiveness or severity, and therefore it could cover any speech about someone the content of
which could offend someone. This could bar ?core? political and religious speech (like 
political speech here). Provided such speech does not pose a realistic threat of substantial
disruption, the Third Circuit held, it is within a student ?5 First Amendment rights.

Likewise here, speech has been targeted by the school district?s harassment policy, a policy
that is similarly overbroad and unconstitutional. .P. did not create a substantial disruption??to
the contrary, the video of the incident re?ects that the ?speech? allowed for 90 seconds of
lighthearted fun, and clever political satire, in a high?level academic class.

 

1 The other examples of harassment in the Code of Conduct are not relevant to this discussion.

Dr. Mark J. Rendell
June 6, 2017
Page No. 4

Indeed, in Saxe, Judge Alito noted that the First Amendment protects speech that is far more
offensive or humiliating than what is at issue here. Judge Alito said: ?There is also no question
that the free speech clause protects a wide variety of speech that listeners may consider deeply
offensive, including statements that impugn another?s race or national origin or that denigrate
religious beliefs.? speech didn?t come within a country mile of this kind of offensive
speech?speech that the Third Circuit ruled was protected?yet VBHS decided speech was
not protected, and instead punished him for it pursuant to its unconstitutional harassment policy.

Supreme Court precedent also demonstrates that the VBHS school policy here fails to pass
constitutional muster. A regulation is unconstitutional on its face as overbroad where there is ?a
likelihood that the statute?s very existence will inhibit free expression? by ?inhibiting the speech
of third parties who are not before the Court.? Members of City Council v. Taxpayers for
Vincent, 466 US. 789, 799 (1984). Here, students at VBHS will never know what they can say
that will trip the wires of the school?s harassment policy, since administration has held (so far)
that harmless speech violated the harassment code. If this innocuous 90 seconds violates
the harassment code, then what speech won?t?

At bottom, as Justice Alito said in Saxe, there is no categorical ?harassment exception? to the
First Amendment?s Free Speech Clause. Although there is ?a compelling interest in promoting
an educational environment that is safe and conducive to learning, there are no facts here
sufficient to justify the VBHS position that .P. created a substantial disruption. To the contrary,
the video of the incident demonstrates that the classroom remained an environment safe and
conducive to learning at all times.

What?s particularly striking about this misuse of a speech code is the fact that the student
handbook promises to deliver a much more robust institution for its public school students. In the
handbook, VBHS and the Indian River County School District claim that the school must
?prepar[e] all students to thrive in college, career, and community endeavors.? In the 21st
Century, we should expect to hear opinions we may not personally agree with and stand ready to
engage those opinions in the marketplace of ideas. Vero Beach High School does its students no
service to punish a student for innocent humor conducted as part of a school election, with an
AR US. History teacher?s permission. To the contrary, the school?s misuse of its Code of
Conduct unjustly steals the election and brands his record with a ?harassment? charge,
unconstitutionally interferes with educational opportunities, and jeopardizes his college
admission possibilities.

Dr. Mark J. Rendell
June 6, 2017
Page No. 5

Conclusion

The actions taken by the school here?both in the way it treated .P. and in the way it applied its
harassment policy?created a ?chilling? effect that sti?es student speech for all students, not just
J.P. Those actions violated First Amendment rights.

The classroom has been recognized by the Supreme Court of the United States as the
?marketplace of ideas,? and the High Court has emphasized the ?nation?s future depends on
leaders trained through wide exposure to that robust exchange of ideas.? High school students,
particularly those campaigning in a school election, cannot be punished for innocuous humor and
political satire of the sort J.P. engaged in. The Constitution forbids it. I hope this letter is well-
taken at the School District and causes the District to reverse its position, reinstate .P. Krause as
Class President, and remove any reference to a ?nding of harassment against .P.

Sincerely

l?lt/ (Lg 

MARK MILLER
Senior Managing Attorney
Paci?c Legal Foundation

I look forward to hearing from you.

cc: Shawn R. Frost 
Dale Simchick 
Laura Zorc 
Charles G. Searcy 
Tiffany M. Justice 
Principal Shawn O?Keefe