Application of Tinker Versus Des Moines Case in Protection of Jennifer Morgan’s First Amendment Rights

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Statement of facts

This is a case of first impression regarding the protection of Jennifer Morgan’s First Amendment rights. Defendant suspended fifteen-year old Jennifer Morgan for posting memes to Instagram with her personal cellphone from the privacy of her bedroom. (Dep. of Jennifer Ann Morgan, 4:15-32.) Typically a high achiever and an “A” student, Ms. Morgan received a “C” in Ms. O’Malley’s class. Morgan Dep. 1:18-20. Bewildered and confused, Ms. Morgan sought advice from fellow classmates and discovered that none of the females she spoke with received an “A” in the class. Morgan Dep. 3:20-28. Conversely, the male athletes received significantly higher grades and preferential treatment that included special tutoring sessions. Morgan Dep. 3:24-4:2. While in her bedroom Friday evening, February 2, 2018, Ms. Morgan took action, hoping to achieve equal treatment and receive fair grades. Morgan Dep. 4:8-14. She created two satirical memes on her iPhone, posting them publicly on Instagram. Morgan Dep. 5:11-31. The overwhelming responses to the memes were humor, “likes,” and an increase in new followers. Morgan Dep. 4:32-5:2. The first meme contained Ms. O’Malley’s picture on a cougar and the male athletes’ pictures on cubs with the caption “Cougars? They make great pets.” Morgan Dep. 5:15-20. The second meme portrayed Ms. O’Malley in a low-cut blouse near a male student with hashtags and the captions “COUGARS – Always on the prowl” and “A teacher with a very hands-on approach.” Morgan Dep. 5:23-29.

Jennifer Morgan is an avid photographer who volunteered her time and talent developing content and taking photos for the school’s Yearbook Club. Morgan Dep. 1:22-23. She maintained a spotless discipline record and was never involved in a fight. Morgan Dep. 1:11-15. Ms. Morgan enjoys developing her photography and editing skills by exploring new programs in her free time and on weekends. Morgan Dep. 2:4-6. Her creative designs were inspired by political and social comedians and she used similes, metaphors, and hyperbole to communicate social issues and current events with satire and humor. Morgan Dep. 2:26-29; Compl. 2. Her Yearbook Club advisor, Mr. Hudson, encouraged her to continue developing her talent until Mrs. Jones suspended her. Morgan Dep. 2:29; Dep. of Carol E. Jones 4:17-5:13.

A football player who viewed the memes over the weekend notified the principal, Mrs. Jones, that Monday. He claimed the coach was angry and other players’ parents might be contacting her. Jones Dep. 1:20-25. Mrs. Jones accessed the memes on her personal cellphone and called Ms. Morgan into her office. Jones Dep. 1:28-2:28. Ms. Morgan genuinely believed everything she said was true but conveyed it satirically and humorously. Morgan Dep. 7:13-14. Later that day, Mrs. Jones spoke with Ms. O’Malley. Although she had not seen the memes yet, she admitted she was not surprised to hear of the favoritism allegations. She stated she would be willing to tutor all her students, not just the males. Jones Dep. 3:10-19.

On February 7, Mrs. Jones suspended Ms. Morgan from school for five days and extracurricular activities for the remainder of the school year. She believed the memes violated school policy, specifically section 7.2, and indicated they were “disrespectful and, if left unaddressed, could undermine the educational environment of the school.” Jones Dep. 4:14-20.

Mr. Hudson confirmed school resources were not used to create the memes. Ms. Morgan used the “Graffix” app and accessed the off-campus photo bank. Jones Dep. 3:33-4:7. The memes were not posted, accessed, or viewed by Ms. Morgan at school, nor were they accessed by students using school resources because Instagram is blocked from the school’s wireless network and computers but is still accessible through cellular networks. Morgan Dep. 6:1-19. Although students came up to Ms. Morgan, she did not mention the memes or tell anyone to view them. Morgan Dep. 6:6-20. Teachers reported that students were slightly more talkative than normal, Ms. O’Malley’s name was overheard a few times, some “meowing” and “growling” noises were overheard in the hallway, and rumors were starting to circulate. Morgan Dep. 6:20-21; Jones Dep. 5:25-29. However, no material and substantial disruption was sustained by Defendant on February 5. Morgan Dep. 6:28-29; Jones Dep. 5:24-6:6.

Plaintiff filed a complaint and demand for a jury trial on May 2, 2018. Defendant filed an answer on May 16, 2018. On November 16, 2018, Defendant filed a motion for summary judgment and on December 14, 2018, Plaintiff filed a response to Defendant’s motion for summary judgment and a cross-motion for summary judgment. On January 15, 2019, Defendant filed a response to Plaintiff’s cross-motion for summary judgment.

Issue

Under the First Amendment, did the Defendant violate Ms. Morgan’s First Amendment rights when the memes were created off-campus from Ms. Morgan’s personal cell phone from her bedroom and no school resources were used to create, view, or access them; the memes did not affect Ms. O’Malley’s work or the way she interacted with students, and some “meowing” and “growling” noises were heard in the hallway, Ms. O’Malley’s name was overheard in classrooms, and students were talkative?

Argument

To prevail on summary judgment at trial level, “A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” Fed. R. Civ. P. 56.

I. The court should grant the plaintiff’s motion for summary judgment based on the first amendment because the defendant violated Ms. Morgan’s right to free speech.

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment guarantees the right to freedom of speech and students remain under the protection of the Constitution whether in school or out of school. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969). Schools do not have the right to exercise authority over them at all times. Id. To ensure freedom of speech is protected, the Supreme Court has recognized that student speech must be strictly guarded by the First Amendment. Additionally, the Supreme Court holds that the Fourteenth Amendment protects citizens against the State, which includes the Board of Education. The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.

The Supreme Court has determined that schools may only restrict student speech in specific instances. A student’s right to freedom of expression is protected by the First Amendment, even in the occurrence of an “undifferentiated fear or apprehension of disturbance.” Tinker, 393 U.S. at 508. The Supreme Court developed a two-part test to determine if a school may restrict the student’s speech. First, the school must be able to show that it would “materially and substantially disrupt the work and discipline of the school” or “impinge upon the rights of other students.” Id. at 509. Second, the school must prove the action taken was caused by something “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint or an urgent wish to avoid the controversy which might result from the expression.” Id. at 510.

Students may exercise freedom of speech in a school-sponsored publication; however, schools retain editorial control over the style and content if other students, parents, and members of the public might reasonably perceive it to bear the imprimatur of the school. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988). Student speech that is offensive, lewd, and indecent and contains elaborate, graphic and explicit sexual metaphors is also protected unless it undermines the school’s basic educational mission with a captive audience. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 685 (1986). In Bethel, the Supreme Court determined a balancing test that weighs the freedom to express controversial or unpopular views against society’s interest in “teaching students the boundaries of socially appropriate behavior.” Id. at 681. Lastly, student speech is protected at school-sponsored events, unless the speech is reasonably viewed as promoting or advocating illegal drug use. Morse v. Frederick, 551 U.S. 393, 403 (2007). The school need not demonstrate the speech will give rise to a “risk of substantial disruption” in this instance. Id. at 399.

This is a case of first impression in this jurisdiction. In this case, the Court should grant Plaintiff’s motion for summary judgment because Defendant cannot meet the burden of proof that Ms. Morgan’s speech created a material and substantial disruption or impinged upon the rights of other students. Additionally, suspending Ms. Morgan was merely a desire to avoid discomfort and unpleasantness surrounding an unpopular viewpoint.

A. Ms. Morgan’s Suspension was Constitutionally Impermissible Because the Defendant did not Sustain a Material and Substantial Disruption Resulting From her Speech.

When student speech occurs off-campus, the Supreme Court applies the two-part Tinker test. The school must prove that a material and substantial interference disrupted the work and discipline of the school or impinged upon the rights of other students. Tinker, 393 U.S. at 508. Prohibition of an opinion lacking evidence of necessity to prevent a material and substantial interference with school work or discipline is not constitutionally permissible. Id. at 511. The Supreme Court holds that the test is not satisfied by an “undifferentiated fear or apprehension of disturbance” Id. at 508. When the speech occurs off-campus, the school must establish a sufficient nexus between the student’s speech and the material and substantial disruption of the school environment. Layshock v. Hermitage School Dist., 650 F.3d 205, 214 (3d Cir. 2011). Internet speech that directly targets the school is not subject to school regulation for the mere reason that a teacher is referenced. Sagehorn v. Independent School Dist. No. 728, 122 F. Supp. 3d 842, 858, 861 (D. Minn. 2015). In addition, speech referencing teacher-on-student sexual conduct does not automatically render it likely to reach the school and cause a material and substantial disruption. Id. at 842. Speech will constitute a material and substantial disruption if sufficiently harassing, threatening, or intimidating, and it adversely affects a teacher’s work and the way the teacher interacts with students. Bell v. Itawamba County School Board, 799 F.3d 379, 388 (5th Cir. 2015). Merely causing a teacher to have difficulty performing his duties while upset and “almost in tears” will not constitute a material and substantial disruption. Killion v. Franklin Regional School District, 136 F. Supp. 2d 446, 456 (W.D. Pa. 2001). If a material and substantial disruption did not occur but could be reasonably forecasted if the school did not intervene, the first element of the Tinker test will be met. Bell 799 F.3d at 379. However, if the speech is outrageous enough that no one could take it seriously and no one does, schools cannot “reasonably forecast” a substantial disruption. J.S. ex rel. Synder v. Blue Mountain School District, 650 F.3d 915, 930 (3d Cir. 2011).

Student speech will constitute a material and substantial disruption if the student’s conduct demonstrates an unwillingness to fulfill the extracurricular role or the student constitutes a direct challenge to the coach’s authority. Thus, removing the student from the extracurricular activity does not constitute a violation of his First Amendment rights. See Doninger v. Niehoff, 642 F.3d 334, 350, 351 (2d Cir. 2010); Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007).

In this case, Mrs. Jones admitted that she felt the posts were “disrespectful and, if left unaddressed, could undermine the educational environment of the school.” However, in Bethel, student speech that undermined the school’s educational environment occurred inside the school before a captive audience of 600 students. Bethel 478 U.S. at 677. The speech was sexually explicit, elaborate, and graphic. Id. at 678. Although Ms. Morgan’s memes were sexually suggestive and contained innuendos, the pictures and words were not sexually explicit, elaborate, or graphic. Additionally, the memes were posted off-campus to the public and did not constitute a captive audience; viewers had to choose to view the memes; they were free to ignore or scroll past them. The fact that Ms. Morgan’s Instagram gained a significant number of followers indicates viewers chose to look at them. Morgan Dep. 5:8-9. In Tinker, the Supreme Court took care to specify that the speech must be more than an occurrence of “undifferentiated fear or apprehension of disturbance” to be restricted. Tinker 393 U.S. at 508. Mrs. Jones stated the coach was angry, players’ parents might be contacting them, and rumors were starting to circulate. Jones Dep. 1:24-25, 6:4-5. Defendant’s fear or apprehension of the players’ parents contacting the school is insufficient to constitute a material and substantial disturbance. In Layshock, a student created a satirical “parody profile” for the school principal with a picture retrieved from the school website. Layshock 650 F.3d at 207. The school could not establish a material and substantial disruption had occurred even though the profile claimed the principal was transgender, used illegal drugs, and the news “spread like wildfire.” Id. at 208, 214. Similarly, news of Ms. Morgan’s memes spreading around the school also cannot constitute a material and substantial disruption. In Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015), a high school student recorded a song using harassing, threatening and intimidating language that directly accused two coaches of sexual misconduct with students. Id. at 409. He posted it publicly on Facebook from his private computer during non-school hours, intending to reach the school community. Id. at 383. Although Facebook was blocked from school computers and students were banned from bringing cellphones to school, it was reasonably foreseeable that the song would cause a material and substantial disruption because it adversely affected the coaches’ work and how they interacted with students. Id. at 383, 388. Although the memes were posted publicly to social media and reached the school community, this case is distinguishable from Bell because the memes did not harass, threaten, or intimidate; Ms. Morgan posted satirical and suggestive innuendos rather than direct accusations, and Ms. O’Malley’s work was not affected, nor did it affect her interaction with students. The memes did not fulfill the requirement of a material and substantial disruption.

B. Ms. Morgan’s Speech did not Impinge Upon the Rights of Other Students.

In the absence of a material and substantial disruption, the speech must have collided with or impinged upon the “rights of other students to be secure and to be let alone.” Tinker 393 U.S. at 738. Speech that ridicules, harasses, bullies, and intimidates or contains an identifiable threat of violence will constitute an impingement of other students’ rights. See Kowalski v. Berkeley County Schools, 652 F.3d 565, 569 (4th Cir. 2011); Wynar v. Douglas County School District, 728 F.3d 1062, 1069 (9th Cir. 2013). Speech that merely offends or criticizes another student’s way of life and sexual preference will not fulfill the requirement of impinging upon the rights of other students. Glowacki v. Howell Public School Dist., No. 2:11-cv-15481, 2013 U.S. Dist. LEXIS 85960 (E.D. Mich. June 19, 2013).

In Kowalski, a student-created webpage was dedicated to ongoing ridicule, harassment, bullying, and intimidation of another student. Kowalski 652 F.3d at 567. Although originating from a private computer at home, it was foreseeable that the off-campus speech and conduct would reach the school because it invaded the right of another student to be left alone. Id. at 571. Because the speech was ongoing, the harassment was liable to continue had the school not intervened. Id. at 574. Unlike Kowalski, in this case, the memes did not ridicule, harass, bully, or intimidate another student. The memes were posted once which does not constitute ongoing and dedicated conduct directed toward another student. In addition, Ms. O’Malley was the focus of the memes, not the student-athletes. Without ongoing and dedicated conduct or an identifiable threat of violence directed toward another student, Defendant did not fulfill the first part of the Tinker test and lacked the right to restrict Ms. Morgan’s speech.

C. Defendant did not Establish the Action Taken was Due to Anything More Than Discomfort and Unpleasantness from an Unpopular Opinion or an Urgent Wish to Avoid Controversy.

Even if the first half of the test was fulfilled, the Defendant must fulfill the second requirement and prove that restricting Ms. Morgan’s speech was “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint or an urgent wish to avoid the controversy which might result from the expression.” Bethel 478 U.S. at 509. Talkative students, the beginning of rumors, and hearing noises or names in the hallway did not rise to the level of a material and substantial disruption, nor could one have reasonably been forecasted. The memes did not impinge upon the rights of other students as established by the Supreme Court in Tinker; however, the controversy resulting from Ms. Morgan’s speech does resemble the “discomfort and unpleasantness” resulting from an unpopular viewpoint. Without a material and substantial disruption or speech that impinges upon the rights of other students, and proof that the violation of Ms. Morgan’s speech was more than the desire to avoid the controversy, discomfort, and unpleasantness resulting from it, the school violated Ms. Morgan’s First Amendment right to free speech.

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