The First Amendment Takes It On the Chin – Twice

The First Amendment rarely fares well when it bumps up against public school personnel. Whether it’s the Free Speech Clause or one of the religion clauses, teachers and administrators have real trouble finding the line that separates constitutional from unconstitutional conduct. Sadly, two recent events in West Virginia have provided vivid demonstrations of the problem.

The first, even more sadly, emerged from my alma mater, George Washington High School in Charleston.

Principal George Aulenbacher allowed an abstinence-only “speaker” named Pam Stenzel to come to the school. The assembly, at which attendance was mandatory, was paid for:

by a conservative religious organization called ‘Believe in West Virginia’ and advertised with fliers that proclaimed ‘God’s plan for sexual purity.’

It doesn't take a First Amendment scholar to know that arguments for “God’s plan” about anything doesn’t have any place in a public school. If there’s a basis for abstinence only education in schools (I’d argue there isn’t, but that’s for another day), it needs to be one divorced from anyone’s concerns about gods, or the lack thereof, and based on objective, verifiable facts.

Even worse, Stenzel’s shtick is abusive and confrontational:

Stenzel has a long history of using inflammatory rhetoric to convince young people that they will face dire consequences for becoming sexually active. At GW’s assembly, Stenzel allegedly told students that ‘if you take birth control, your mother probably hates you’ and ‘I could look at any one of you in the eyes right now and tell if you’re going to be promiscuous.’

This piece at Salon has more background on Stenzel, including her reliance on bogus statistics and facts. Her routine includes some other gems:

While talking about the importance of only ever having sex with one person for your entire life, she says, ‘If you have sex outside of that context you will pay. No one has ever had more than one partner and not paid.’

Thankfully, a GW senior, Katelyn Campbell, objected to the whole assembly, refused to attend, and contacted the ACLU. But to truly take the cake for this awful affair, Aulenbacher threatened her for speaking out:

The high school senior alleges that Aulenbacher threatened to call Wellesley College, where Campbell has been accepted to study in the fall, after she spoke to the press about her objections to the assembly. According to Campbell, her principal said, ‘How would you feel if I called your college and told them what bad character you have and what a backstabber you are?’

The fine folks at Wellesley College, as expected, were not not fazed by Aulbacher’s clumsily bizarre attempt at retaliation. After botching the Establishment Clause premise, Aulbacher then went ahead and violated the spirit, if not the letter, of the Free Speech Clause by trying to punish Campbell for publicly objecting. At least that attempt fizzled and died.

So, while my alma mater’s principal was failing the Establishment Clause (with a Free Speech chaser) in Charleston, a teacher in Logan was flunking the Free Speech Clause.

A middle school student wore a NRA T-shirt to school. This upset at least one member of the school staff:

White said that Marcum had been wearing the shirt without causing any problems from homeroom at the beginning of the school day through fifth period, and was confronted by one of the school’s teachers while getting his lunch. When Jared refused to remove or reverse the shirt, the teacher began to raise his voice, and it caught the attention of students eating their lunch, White said.

Marcum was eventually arrested and taken away by police after refusing to remove the shirt. White said that when police told the teen they were going to arrest him, he stuck his hands out and said, ‘Fine.’

Now, as the Supreme Court has said:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

And that was in 1969. I agree with Eugene Volokh that a policy banning T-shirts like the one this student wore is most likely unconstitutional. It doesn’t even really seem like a close call. Thus, there was no basis for the teacher to ask the student to remove the shirt, much less for him to be arrested (?!) for doing so. It was fine for the teacher to approach the kid and ask about his shirt – free speech is a two-way street, after all – but any escalation seems to be the teacher’s fault, not the kid’s. One would expect a teacher to have better control of his/her emotions than a middle school kid, for fuck’s sake.

I don’t envy teachers or school administrators. Riding herd over hundreds of kids everyday raises problems on a regular basis that I’m sure I could never dream of. And, sadly, First Amendment jurisprudence in some areas isn’t as clear as it should be. But there are some pretty damned clear lines that can’t be crossed, with don’t bring people into a public school to push their version of God’s will and kids have a right to express themselves being two of them.

That either of these situations flared up, much less became nationally-recognized news items, is evidence that somebody needs to stay after class and do some remedial work.