A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  

A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.