Guest Editorial: The federal lawsuit brought by Parents Defending Education against the Croton-Harmon school district is "frivolous and cannot succeed."

A constitutional law expert says U.S. Supreme Court precedents give school boards wide latitude in regulating harmful speech and conduct, despite important protections for student free speech.

By Bennett Gershman, Distinguished University Professor, Elisabeth Haub School of Law at Pace University.

Pace University

Editor’s note: We have now posted several reports and a commentary about the lawsuit filed against the school district on June 12 on behalf of the conservative group Parents Defending Education and three anonymous Croton-Harmon parents. Last week, the plaintiffs filed a motion with the federal court for a preliminary injunction that, if granted, would block enforcement of virtually all the district’s anti-harassment, anti-racist, anti-bullying, DEI, and related policies.

The plaintiff’s attorneys, in a Memorandum of Law defending their position, acknowledged that their motion would need to jump over some important legal hurdles before it could be considered, including precedents in the U.S. Second Circuit (our appellate court) that would normally bar the motion, including decisions that would not allow anonymous plaintiffs to have standing to sue.

We asked Bennett Gershman, a constitutional scholar at Pace University, to comment on the plaintiffs’ case and their arguments for a preliminary injunction. Gershman cites some important U.S. Supreme Court decisions bearing on the rights and limits of student free speech, including the famous 1968 Tinker case which first gave students important free speech protections; the 1986 Bethel case, which upheld a school district’s right to prohibit the use of vulgar and offensive language; and the 1971 Cohen vs. California case, which restricted criminal prosecution for exercising freedom of speech.

Gershman also discusses the question of “justiciability,” that is, whether a court can actually adjudicate the particular matters that are presented to it.

The Chronicle welcomes Guest Editorials on subjects germane to the village of Croton-on-Hudson, and we hope to publish a diversity of opinion on this particular lawsuit as it proceeds.

First, the case is not justiciable, meaning that the court will not review the merits of the case (as the plaintiff clearly recognizes) because the plaintiff as an organization lacks standing. This means that it has not shown enough injury to identifiable persons for their organization (or the anonymous others) to warrant a federal court giving them the opportunity of litigating in federal court.

I won’t go into a lengthy discussion of the “justiciability doctrine” and rules of party standing except to say that Second Circuit precedent bars the plaintiff from litigating the merits. In fact, the plaintiff organization acknowledges all of this, which makes me wonder whether they and their lawyers are engaging in unprofessional conduct by bringing a case that they know is frivolous and cannot succeed.

Second, even if a court were to consider the merits, the plaintiff organization would lose hands down. It’s not even a close call. And the plaintiffs surely must know this. After carefully reading the relevant language from the [Croton-Harmon] school district code of behavior, it seems to me that the code is entirely reasonable, responsible, uncontroversial, and totally committed to maintaining a civil and decent environment inside the school community—far from the extreme and bizarre characterization given by the plaintiff that the code is “overbroad, viewpoint based, and vague.”

Indeed, the code contains the exact language that courts typically use in describing the kinds of offensive speech in public schools that school administrators  are allowed to regulate under the First Amendment. The plaintiff’s arguments are extreme, baseless, and I would add nonsensical.  For example, the Supreme Court has held that “offensive” speech in a public forum may not be censored. See Cohen v. California (1971, defendant wore jacket in public area of a courthouse bearing the anti-Vietnam war words “Fuck the draft.”)  

Does the plaintiff seriously contend that a student could properly wear a T-shirt in a public school bearing a similar message? Or the kinds of messages that the plaintiff claims students should be allowed to express? In fact, virtually every court case I know of allows schools to ban message-bearing T-shirts, signs, or other  forms of communication that the school reasonably considers “offensive.” (The anti-war arm bands in Tinker were neither indecent nor offensive.)

And every aspect of the [Croton-Harmon] school code in this case contains prohibitions of communications that are clearly offensive. Certainly a school board could reasonably consider the messages the plaintiff wishes to promote as offensive.

I was amused that the plaintiff gives only one brief mention to the Bethel School District case (and then suggests that the case is exclusively about “indecent, lewd, and vulgar” speech by a student in a school assembly.)

The plaintiff is being disingenuous. By my count, the Court in Bethel referred to “offensive” speech at least 12 TIMES and made it abundantly explicit that “offensive” speech could be prohibited from public schools under the First Amendment. And while the Tinker test is still used, so is an alternative test that gives considerable deference to school authorities under the First Amendment, namely, “whether the school regulation is reasonably related to legitimate pedagogical concerns.”  

Given the Supreme Court decisions on school speech, it is difficult for me to take the plaintiff’s claims seriously. There is no viewpoint discrimination, unless you consider a ban on racist, homophobic, or anti-Semitic speech viewpoint based.

The Supreme Court has consistently written that “speech or action that intrudes upon the work of the schools or the rights of other students” can be prohibited. The Court understands that educators strive to maintain habits and manners of decency and civility in public education. And as the Court stated (Bethel), “the determination of what manner of speech in the classroom or in school assemblies is inappropriate properly rests with the school board.”

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