Legal Commentary

School Board Violating California Law?

By Eugene Volokh

The students in the incident I mentioned last week have now been ?suspended for three to five days ? causing some to miss graduation?:

Seven students met in the school parking lot May 20 to play a game dubbed ?Beat the Jew,? though the game happened off school grounds, Johnstone said.

The chase game involved a voluntary participant called a ?Jew? running down Highway 111 and a group of students called ?Nazis? in cars who attempted to catch up with the runner.

About 40 students were connected to a Facebook page promoting the group....

Officials initially said the game did not happen on school property and therefore could not be disciplined by the school, but the investigation determined that it was discussed at school during lunch, [Sherry Johnstone, Desert Sands Unified School District assistant superintendent of personnel] said.

I discussed earlier why the students likely couldn?t be disciplined under the First Amendment, unless there was evidence that their speech was likely to create material disruption on-campus. (I understand from the story that the school district was indeed punishing them for their speech ? labeling the game ?beat the Jew? ? and not for the physical conduct, such as engaging in a driving game.) But I forgot to mention that California?s so-called Leonard Law gives high school students even broader protection from speech restrictions:

(a) School districts operating one or more high schools and private [nonreligious] secondary schools shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution....

(d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected....

(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.

Now the school?s answer appears to be that ?Students violated education code involving harassment or creating a hostile education environment and bullying, Johnstone said.? But broad and vague as hostile environment harassment law may be, exception (d) is not broad enough to cover the behavior that was reported in the newspaper accounts (see Corry v. Stanford University (Cal. Super. Ct. 1995)). First, such behavior doesn?t fit within any of the legal definitions of ?harassment.? Second, such behavior is ?constitutionally protected,? at least if that phrase refers to the definition in part (a) of ?speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment? (which is the most plausible reading, and the reading that the Corry court used).

Now perhaps there are more facts that aren?t in the newspaper account, such as physical threats during the lunchtime conversation, or perhaps face-to-face insults or something else that might make for a credible claim that the speech is ?harassment, threats, or intimidation.? But given the lack of any reported accounts of such behavior, I?m skeptical that exception (d) indeed applies here. And if it doesn?t apply, then the school board?s actions would seem to violate the California statute.

Full post as published by The Volokh Conspiracy on June 07, 2010 (boomark / email).