I’ve written about Super Kid, who’s name is Rumeur (she went public as I discuss below), here. In brief, Rumeur alleges that her elementary school principal censored a letter to the community supporting trans rights and required her to write a new letter. I opined that there was little hope of victory on the free speech issues, I lack the expertise to comment on other issues raised, and still believe that. The litigation, however, continues and paints an interesting picture of interactions over time.
Rumeur’s complaint was filed on 6 March 2019 and on 15 March the principal sent a letter to Rumeur’s mother designed to both build an alternative narrative, though vaguely, and to undermine the lawsuit. The principal, in essence, states that she was not aware of the details of the assignment, implying that any claims that she interfered with Rumeur’s original essay are false, and that she discovered two different essays and would print both. Taking the most pessimistic reading, which is my natural state anyway, this is an attempt to undermine any constitutional claim and damages by offering to cure the harm: if the violation was the refusal to print, now that is gone. The pessimistic reading is supported by the fact that this letter was sent both through regular mail and through certified mail. While the district claimed this was standard operating procedure for the school “in these type matters,” this is a common action in lawsuits because the certification on the mail serves as proof that the letter was sent. Rumeur’s lawyer responded with an amended complaint that accused the school of attempting to out her as the student suing as the letter named her directly and if introduced in court would become public record. On the one hand, I’m slightly skeptical of this because Rumeur’s mother was always named in the lawsuit and thus locals would have no trouble identifying her child. On the other hand, the fact that Rumeur’s lawyer waited to file the letter in court until after she went public herself suggests the concern was legitimate.
On 3 April the district filed its answer and a motion to dismiss. In addition to a number of statutory defenses in tort and civil rights law that I can’t comment on, it adopted the basic theory that my original post laid out: that the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988) gives schools broad authority to censor student speech when it is school sponsored. The district naturally adopts a broad interpretation of this doctrine. Interestingly, the district seems to be concerned with one aspect of Rumeur’s allegations: that the principal acted out of hostility towards her viewpoint and not out of legitimate pedagogical concern. It is important to note that in this type of motion the district is required to assume that Rumeur’s allegations are all true. The district asserts that even if true, the principal’s statements did not show her personal hostility towards trans rights but “[r]ather, the alleged comments are attributed to how other members of the school community and parents might react to the content or the topic” of Rumeur’s essay. “Nothing alleged … would lead a reasonable person to believe the alleged comments and actions taken by [principal] were not related to pedagogical concerns.” This reads as if the district is preparing to argue that viewpoint discrimination could only exist if the principal was actively hostile to the substance of Rumeur’s essay and that, instead, she was just concerned about the hostility of others, implying that this is a legitimate pedagogical concern.
On 8 April, Rumeur released a video going public on social media. She laid out her story briefly, noting some harassing comments online, and asked everyone to wear purple, her favorite color, on Friday of that week. According to Rumeur’s response to the motion to dismiss and its proposed second amended complaint, things appear pretty tense at the school. Rumeur’s mother decided to bring cupcakes in for the Fourth Grade on that Friday and received assurance from administrative staff that this was allowed only to have both the assistant principal and an associate superintendent call and inform her that this would not be allowed though, allegedly, they could point to no rule that it violated. Then, when Rumeur and her parents had lunch that Friday, the proposed complaint notes that the principal, both assistant principals, and the student resource officer (in other words, a police officer) all attended lunch that day. Assuming this is unusual, and I’m not sure I would buy that this is every day behavior, it suggests that administration wanted to at least monitor Rumeur and her parents closely to ensure that they didn’t spread their story or seek support and wanted plenty of witnesses on hand just in case. The second amended complaint also notes that every staff member at the school that day wore a school or district shirt. This could be perfectly innocent, my institution encourages us to wear school shirts and colors on Fridays. If this was unusual, however, it suggests a directive from administration ordering such attire as a means of avoiding any official support, even accidental, for the purple protest.
This on-going litigation is fascinating. Without the school’s side of the story—as is standard for this point, it has just denied the key pieces of Rumeur’s story but has not offered any contrary facts yet—it is impossible to assess the dispute fully. Clearly the situation appears tense and I imagine there is a certain amount of community discomfort with the whole thing. I still don’t see much hope of success on the constitutional issue but a motion to dismiss is strong medicine and the judge may be unwilling to cut off the issue without some fact-finding. I hope that proves to be the case here because discovery in this case could expose some pretty interesting additional facts.