David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.
Dissenting opinions obviously don’t have the force of law that majority opinions do. But that doesn’t mean they aren’t better reasoned. Recall that Justice John Marshall Harlan (the first one) was known as “the Great Dissenter” in part for his solitary dissent in the abhorrent Plessy v. Ferguson (1896), in which the Court sanctioned segregation and the noxious separate-but-equal doctrine.
Judge Rosemary Pooler’s March 22 dissent in the student-speech case Cuff v. Valley Central School District from the 2nd U.S. Circuit Court of Appeals may not rise even close to that level of prominence. Yet it brought some much-needed perspective to an area of law in desperate need of it.
The case involved a class assignment in 2007 for fifth-graders at Berea Elementary School in Montgomery, N.Y., to color in a picture of an astronaut and write anything on it they wanted. The teacher allegedly told the class: “When I mean anything you want, anything. You can write about missiles.”
Hearing this, 10-year-old B.C. — in juvenile cases often only initials are used — wrote on his picture that he wanted to “blow up the school with all the teachers in it.” He showed the picture to his classmates and they laughed.
It was no laughing matter to the teacher, and B.C. received a six-day suspension. His parents sued on his behalf, alleging a violation of his First Amendment rights. When the case reached the 2nd Circuit, the three-judge panel ruled 2-1 in favor of school officials.
Judge Ralph Winter reasoned that school officials must have broad authority to handle student-speech issues in order to prevent violence or a substantial disruption of school under the U.S. Supreme Court’s famous decision in Tinker v. Des Moines Independent Community School District (1969).
“Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence,” he wrote. “The threat of substantial disruption was aggravated by B.C.’s sharing of his ‘wish’ with fellow students, an act reasonably perceived as an attention-grabbing device.” The reasoning was that other students might engage in distracting copycat behavior that would interrupt education at the school.
Judge Pooler disagreed with this line of reasoning, noting that Tinker requires at least a forecast of a substantial disruption. To Pooler, B.C.’s act created only a “minor disruption.”
She also warned that the majority opinion allows a speaker’s First Amendment freedoms to be determined entirely by listeners. She didn’t use the term, but the majority opinion sanctioned the idea of a heckler’s veto on speech.
“The First Amendment’s protection of free speech cannot hinge entirely on the reaction of a listener to a person’s speech,” she wrote. “If that were the case, the First Amendment would be only as strong as the weakest, or at least the most thin-skinned, listener in a crowd.”
Pooler did not say that the student should win the case. Disputed factual issues, such as the meaning and relevance of B.C.’s past drawings, required the case to go to jury, she said.
The majority seemed to declare that any student expression with violent themes justifies school punishment. Pooler dug deeper and questioned such unrestrained deference to school officials by the majority.
Her opinion brings to mind Justice Abe Fortas’ warning in Tinker: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”