This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
Two unusual decisions emerged from the federal courts in the last couple of weeks. Both dealt (at least in part) with students’ constitutional rights, though their subject matter couldn’t have been more different. The first, from northeastern Pennsylvania, was about “sexting,” while the other involved the decision of the Miami-Dade School Board to ban a book entitled “Vamos a Cuba” from school libraries.
The Pennsylvania case involved several girls at Tunkhannock High School whose photos, showing them topless or in underwear, appeared on cell phones confiscated from other students. The girls themselves weren’t the ones who sent the photos around – that would be boys. But the school referred the matter to the Wyoming County District Attorney, who notified the girls that they had been “identified in a police investigation involving the possession and/or dissemination of child pornography.” He told the families that he would refrain from filing felony charges only if the girls would agree to participate in a program in which they would be required, among other things, to write about why what they had done was wrong.
The D.A. was in no mood to negotiate. “When asked by a parent at the meeting why his daughter–who had been depicted in a photograph wearing a bathing suit–could be charged with child pornography, Skumanick replied that the girl was posed ‘provocatively’ … When the father of Marissa Miller asked Skumanick who got to decide what ‘provocative’ meant, the District Attorney replied that he refused to argue the question and reminded the crowd that he could charge all the minors that night…. He told Mr. Miller that ‘these are the rules. If you don’t like them, too bad.’"
One of the most unusual kinds of legal cases is a federal suit to block a state criminal prosecution – and it’s especially unusual for such a case to win. But that’s what happened in Wyoming County. Represented by the ACLU, the girls and their parents – or at least those who hadn’t been frightened into signing up for the re-education program – obtained a temporary restraining order prohibiting the D.A. from filing charges against them.
The winning arguments may not be exactly what you would have expected. The first involved the constitutional right of parents to direct their children’s upbringing, a right that the Supreme Court has found to be implied by the Due Process Clause of the Fourteenth Amendment. On this point, the judge sided with Marissa Miller’s mother, who testified that “she objected to a requirement that her daughter write an essay describing ‘what she did wrong and how it affected the victim in the case.’ … From Ms. Miller’s perspective, her daughter ‘was the victim’ of whoever sent out the photographs. …. Since her daughter had done "nothing wrong," she should not have to write such an essay. … [A]ll of the parents allege[d] that this program violates [their] right to direct their children’s education,” i.e., to teach them about right and wrong.
The other argument involved one of the less-often-encountered aspects of the First Amendment: besides protecting your right to speak, it protects you from being compelled to say things you don’t agree with. It’s a principle with an interesting history, having come up in the school context (for example, in West Virginia State Board of Education v. Barnette, where the Supreme Court held that the state could not require students who were Jehovah’s Witnesses to recite the Pledge of Allegiance) as well as in several other situations that fall, as First Amendment cases tend to do, all over the political spectrum.
There was, for example, Wooley v. Maynard, in which George Maynard – also a Jehovah’s Witness — was arrested while on his way to church for having repeatedly “defaced” his New Hampshire license plate by placing a strip of tape over the state motto, “Live Free or Die.” The Supreme Court held that Mr. Maynard could not be forced to express a sentiment with which he disagreed, i.e., a willingness to die for the State of New Hampshire. (I remember that, when we Vermonters read about Mr. Maynard’s arrest, we congratulated ourselves on living in a state that would never consider doing such a thing – not that there was much likelihood of anyone taping over “Green Mountain State” anyway.)
And then came Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. There, the Supreme Court held that the South Boston Allied War Veterans Council, organizers of a St. Patrick’s Day parade, could not be required to allow an LGBT group to march and carry a banner — because that would amount to forcing the Veterans’ Council to endorse a message with which they disagreed. It may seem surprising that the South Boston War Veterans’ argument became the basis for the Tunkhannock students’ victory in the “sexting” case – but the law is full of unexpected connections!
Coming in other blogs – the “Vamos a Cuba” case, plus another big case to be decided by the Supreme Court this spring on the rights of English language learners.