Legal Commentary

I could never have been a public school teacher, much less administrator. And I have tremendous respect and admiration for those who do that job, especially those who do it well. But then there are those who don't do it well or who repeatedly fall prey to moral panics . . .

1) The ACLU last week settled a lawsuit by a student against the Tunkhannock Area School District (Wyoming County, PA), after a school principal rummaged through a student's cell phone, found naked and partially naked pictures, suspended the student and called the police and the district attorney. The student and her attorney got $ 33,000, with no admission of wrongdoing. The principal apparently needed to look very hard and take multiple steps to find the pictures, which also were stored on her phone and never shared with anyone (other than the girl's long-time (for high school) boyfriend). Just a slight overreaction there.

Here's the interesting part: The settlement is only as to the school; the lawsuit continues against former DA George Skumanick, who threatened to prosecute N.N.; Police Detective David Ide, who investigated and viewed the images; and Jeff Mitchell, the current Wyoming County District Attorney. If those names sound familiar, this case is part of the big sexting scandal in which the (now former) DA threatened to prosecute almost two-dozen high school students on child pornography charges unless they agreed to participate in a re-education course about why sexting (and other teen sexuality) were wrong. Three girls refused to take the course and filed suit, obtaining a preliminary injunction that was affirmed by the Third Circuit. The plaintiff in this case was one of seventeen students who went into the re-education program and her forced participation in it is part of her constitutional claim.

2) Keep-A-Breast is a breast cancer awareness organization specifically targeting young women and teen-age (motto: "Never Let Anyone Tell You 'You're Too Young for Breast Cancer''"). Given the target audience, the organization went for the lowest common denominator--putting out a line of t-shirts, rubber bracelets, and other swag with slogans such as "I love boobies," "I heart boobies," "Love your boobies" . . . you get the point. I previously considered the use of sexually suggestive humor in furtherance of important causes--whether it works and whether it is a good idea. Well, it turns out that school officials in several states have cracked down on wearing these clothes in school, suspending students or requiring them to turn them inside out so the text does not show.

Just a slight over-reaction, no? One principal insisted it was not the "proper way" to call attention to the cause. On the other hand, that message has people talking. Most important, however sophomoric (I hesitate to call the word boobies "dirty" or "sexually suggestive") it resonates with the target audience, the very group of kids (especially girls) we want thinking about this issue. Is that really disruptive to the school and educational environment? And is it really about the manner of speech? Should we really believe that the principal at Baltic High School in South Dakota would not have objected to a t-shirt that said, coldly, "Save the Breasts" or "Keep-A-Breast"? I imagine the reaction would have been the same--suggesting that this is just about keeping kids from talking about certain things.

In our post-Morse world, the students do not have a prayer on a First Amendment claim. But might officials exercise a little bit of First-Amendment-informed common sense?