ACLU of Florida, Greater Tampa Chapter
4023 N. Armenia Avenue
Suite 450
Tampa, FL, 33607
www.aclufl.org
October 25, 2016
Via Electronic Mail
[email protected]
Erik Hermansen, Assistant Principal
Ridgewood High School
7650 Orchid Lake Road
New Port Richey, FL 34653
Re: Hunter Banaciski’s Facebook Page
Dear Mr. Hermansen:
We read Jeffrey S. Solochek’s article from Friday’s Tampa Bay Times with interest.
Upon reading it, we thought that Ridgewood High School could benefit from some
friendly advice from our organization, which is dedicated to defending the rights
guaranteed by the Bill of Rights and educating the public about them. To be clear, we
do not represent Mr. Banaciski; we are writing to you as concerned members of the
community.
At the outset, we were impressed to see Mr. Banaciski’s citation in the article to Tinker
v. Des Moines Independent Community School District, which he said was taught in his
seventh-grade civics class. We commend the school district for teaching students about
the case.
Tinker was a 1969 decision from the United States Supreme Court involving several
students (one of whom was Mr. Christopher Eckhardt, discussed below) who wore black
arm bands to school as an expression of disapproval for the Vietnam War. The
principals of the Des Moines schools had adopted a policy that students wearing black
arm bands would be asked to remove them and, if they refused, suspended until they
agreed to return to school without them. The students were suspended when they
refused to remove them and brought a federal lawsuit against the school district for
violating their First Amendment right to free speech. In ruling for the students, the
United States Supreme Court explained that: “First Amendment rights, applied in light of
the special characteristics of the school environment, are available to teachers and
students. It can hardly be argued that either students or teachers shed their
Erik Hermansen, Assistant Principal
October 25, 2016
Page 2
constitutional rights to freedom of speech or expression at the schoolhouse gate.”
During oral arguments in Tinker, Justice Thurgood Marshall famously asked “Seven out
of eighteen thousand, and the school board was afraid that seven students wearing
armbands would disrupt eighteen thousand. Am I correct?” In rejecting the school’s
argument that the regulation was justified by fear that the armbands would cause a
disturbance, the Supreme Court explained: “[U]ndifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression. Any
departure from absolute regimentation may cause trouble. Any variation from the
majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on
the campus, that deviates from the views of another person may start an argument or
cause a disturbance. But our Constitution says we must take this risk, and our history
says that it is this sort of hazardous freedom – this kind of openness – that is the basis
of our national strength and of the independence and vigor of Americans who grow up
and live in this relatively permissive, often disputatious, society.” If you have never read
the entire Tinker decision, we encourage you to do so. The full text can be found here.
Tinker involved on-campus speech, which the schools have limited powers to regulate.
The First Amendment allows the schools far less power to regulate or punish offcampus speech. In the case of Thomas v. Board of Education, Granville Central School
District, 607 F.2d 1043 (2d Cir. 1979), a federal appellate court was called upon to
determine whether schools’ limited power to regulate student speech extended to offcampus speech. In Thomas, some high school students, evidently inspired by the
National Lampoon, took it upon themselves to create an underground newspaper
entitled Hard Times, self-described as “uncensored, vulgar, immoral” and, in the court’s
description, “saturated with distasteful sexual satire” with “articles pasquinading school
lunches, cheerleaders, classmates, and teachers.” The newspaper was primarily
written, printed, and distributed off school grounds and contained a legend disclaiming
responsibility for copies found on campus. There was an incidental connection with the
school in that a teacher allowed them to store unsold copies of the publication in a
classroom closet and to hold after-school meetings there to discuss some of the articles
for the newspaper.
When copies were found on campus, the students were disciplined in several ways,
including suspension, segregation from other students, and inclusion of suspension
letters in their school files. The students brought a civil-rights lawsuit, which ultimately
landed before the Unites States Court of Appeals for the Second Circuit. In determining
whether the schools had the power to punish off-campus speech,1 the Thomas court
held that, because school officials ventured out of the school yard and into the general
community where freedom of expression is at its zenith, they lacked the power to
regulate off-campus expression because they were not independent and impartial
decision makers. Specifically, the court stated: “[A] school official acts as both
1 The court explained: “That a few articles were transcribed on school typewriters, and that the
finished product was secretly and unobtrusively stored in a teacher’s closet do not alter the fact that Hard
Times was conceived, executed, and distributed outside the school. At best, therefore, any activity within
the school itself was De minimis.”
Erik Hermansen, Assistant Principal
October 25, 2016
Page 3
prosecutor and judge when he moves against student expression. His intimate
association with the school itself and his understandable desire to preserve institutional
decorum give him a vested interest in suppressing controversy. Accordingly, ‘Under the
guise of beneficent concern for the welfare of school children, school authorities, albeit
unwittingly, might permit prejudices of the community to prevail.’”
Thomas involved a printed newspaper, but more recent cases affirm that the same
rationale applies to a student’s online expression outside of school. For instance,
Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010), involved a ten-day
suspension handed down to a student who, using his grandmother’s computer at his
grandmother’s house, created a satirical Myspace page purporting to belong to the
school’s principal and containing various statements that mocked and ridiculed him. In
rejecting the school’s argument that it had the power to punish the off-campus speech
because it had a “sufficient nexus” to the school and because it was “reasonably
foreseeable that the profile would come to the attention of the district and principal,” the
Layshock court explained that:
It would be an unseemly and dangerous precedent to allow the state in the
guise of school authorities to reach into a child's home and control his/her
actions there to the same extent that they can control that child when
he/she participates in school sponsored activities. Allowing the District to
punish Justin for conduct he engaged in using his grandmother's computer
while at his grandmother's house would create just such a precedent and
we therefore conclude that the district court correctly ruled that the
District's response to Justin's expressive conduct violated the First
Amendment guarantee of free expression.
We have examined Mr. Banaciski’s Facebook page to assess whether there is merit to
the claim made in the newspaper article that the page could incite a “riot.” There is not.
The page clearly states: “[O]ur protest on November 1st will be a PEACEFUL one,
consisting of nothing except NOT dressing in modified dress code. We will go to our
classes like any other day, if we did anything else, we would be disrupting classroom
activities, and that’s the same thing we’re trying to stop! So keep in mind, this is a
peaceful event.” On close inspection, the web page encourages students to wear
clothing that complied with the prior dress code but not with the modified dress code,
hence defusing any argument that Mr. Banaciski is encouraging students to dress in a
manner that is objectively outrageous. He is not.
From our review of the newspaper article and the Facebook page, it appears that the
students’ opposition to the dress code – echoed by their parents – is not so much its
substance as its practical effect. The students believe that the school’s draconian
enforcement of its atypically restrictive dress code is interfering with their right to receive
a free, quality public education. For instance, the students posit that no harm is done to
themselves or others by, say, wearing socks with a Nike logo on them, but much harm
is done by removing students from class, stripping them of privileges, suspending them
Erik Hermansen, Assistant Principal
October 25, 2016
Page 4
from school, forcing their parents to leave work to bring them new clothing, forcing them
to purchase new clothing that their families might not be able to afford, or even by taking
up class time to discuss the nuances of the modified dress code instead of legitimate
educational objectives. They feel that the school is valuing conformity of attire (and
perhaps also submission to authority for its own sake) over its constitutional purpose of
educating them about science, math, art, literature, and history. Several students have
also posited that the dress code is selectively enforced, with students who enjoy the
favor of faculty and staff being free to deviate from the dress code without consequence
while others have the dress code rigorously enforced against them. Further, the
Facebook page contained comments from parents and students arguing that that the
creation and enforcement of the modified dress code is a drain on school resources that
could be better allocated elsewhere. These are all valid criticisms that the administration
would do well do digest and address instead of attempting to silence them.
The page also features numerous anecdotes from students who say that they were
removed from classrooms, or that their parents/ guardians were forced to leave work or
travel great distances to bring them substitute clothes, all for minor infractions like
having the wrong style collar. Comments from the page by students and parents
indicate incredulousness that the school does not seem to comprehend that its own
actions cause exponentially worse problems than are caused by these minor dresscode infractions. They propose that the administration has lost its way, digging in and
doubling down on the wrong issues. The page has also attracted supportive comments
from members of the public who sympathize with the students’ concerns and support
their First Amendment right to engage in a peaceful protest.
The protest contemplated by the students – wearing clothing to school that was formerly
permitted under a prior dress code but otherwise going about their normal days – does
not, itself, disrupt the operation of the school, and it is miles from encouraging “rioting.”
Instead, it seems that students mean to prove their point by maneuvering the
administration into a predicament wherein it must either: (1) disrupt its own activities by
disciplining an impracticable number of students simultaneously (hence proving the
students’ point that enforcement of the policy is more disruptive to their educations than
having a less-restrictive policy would be); or (2) declining to punish the students who
violate the modified dress code, thereby implicitly conceding the students’ point that
enforcing the policy is more disruptive than disregarding it. While we express no opinion
in this letter as to the constitutionality of the dress code itself, we commend the
students’ brilliant tactical move and ask you to consider whether their concerns have
merit. And we would be remiss not to credit the school district, as well; someone has
done an excellent job of educating these children on how to speak truth to power.
To put Mr. Banaciski’s Facebook page in context, we contrast it with Mahaffey v.
Aldrich, 236 F. Supp. 2d 779 (E.D. Mich. 2002), wherein a student created a website
entitled “Satan’s Web Page.” The webpage advised readers to “[s]tab someone for no
reason and then set them on fire throw them off of a cliff” along with similar admonitions.
A fellow student’s parent complained to police, who advised the administration at the
Erik Hermansen, Assistant Principal
October 25, 2016
Page 5
high school he attended. The student evidently admitted to police that he may have
used the high school’s computers to create the website, and the school suspended the
student and then recommended expulsion. The student prevailed on his civil-rights
claim for suppressing his First Amendment right to off-campus expression, with the
court’s ruling that the possible use of a school computer was an insufficient basis for the
school to punish online speech in the absence of proof that the student’s webpage
materially and substantially interfered with the educational process. Mr. Banaciski’s
Facebook page comes nowhere close to advocating the sort of lawlessness set forth in
“Satan’s Web Page.”
We anticipate that the school will take the position that Mr. Banaciski’s Facebook page,
in contrast to the off-campus online activity held to be protected by the First Amendment
in other cases, substantially interferes with the educational process in that it directly
encourages students at one school to break one particular rule. We counter that the
case law requires off-campus online speech to “materially” and “substantially” interfere
with the educational process before the schools may punish it. At the very most, Mr.
Banaciski’s Facebook page encourages students to wear clothing that, at one time,
complied with the school’s dress code but does not comply with the newly modified
dress code. The school would have a very difficult time convincing a court that
educational activities are being disrupted by noncompliance with the dress code when
they are in compliance with the dress code utilized at Pasco County’s other schools and
formerly utilized without substantial disturbance at Ridgewood High School itself. Like
the black arm bands at issue in Tinker, the logoed socks and t-shirts would not, in and
of themselves, cause a substantial and material disruption of the school’s educational
activities. Accordingly, we are of the opinion – and believe that the courts would also be
of the opinion – that off-campus speech that does not itself materially and substantially
interfere with the school’s educational activities does not lose its constitutional
protection simply because the school contemplates responding to it in a way that would
disrupt educational activities.
We suspect that, at some level, the school is aware of the Constitutional limits on its
power to punish off-campus speech because, rather than punish Mr. Banaciski’s offcampus speech, you and the school resource officer pressured him to remove the
webpage with a threat of arresting him for “inciting a riot.” Again, when it becomes
necessary to take such ridiculous actions to defend a past decision, we respectfully
suggest that this is a good indicator that the time has come to re-evaluate whether that
past decision is in the best interests of students and their parents.
Civil-rights lawsuits in federal court are an expensive and often-unnecessary means of
resolving disputes over whether a school can use its disciplinary powers to silence
criticisms of school rules and policies. We remind the school that federal law provides
for awards of attorney’s fees to successful civil-rights litigants. Should the school punish
Mr. Banaciski for his off-campus speech, and should he challenge the punishment in
court on First Amendment grounds and prevail, this could result in a substantial
attorney-fee award against the school district. We respectfully suggest that members of
Erik Hermansen, Assistant Principal
October 25, 2016
Page 6
the community will deem it unreasonable for school administrators to jeopardize the
school district’s limited financial resources and blemish the records of many otherwisegood students when it would have been so much more prudent to sit down with
students and parents, listen to their very legitimate concerns and objections to the
modified dress code, and attempt to resolve this impasse in a manner consistent with
the school district’s constitutional mission of providing a free, quality public education.
While we understand the temptation to escalate this situation rather than concede a
point to students, we encourage you to see the “teachable moment” that has presented
itself here. The fate of western civilization hardly rests on the Ridgewood High School
modified dress code, but in not very much time, these students will become the young
adults responsible for facing and solving the problems that do affect the fate of western
civilization. Their battle with school administrators over the modified dress code is
practice for their future real-life battles as adults. To see what we mean, you need look
no further than Mr. Christopher Eckhardt, mentioned above as one of the Tinker
plaintiffs. Mr. Eckhardt died in Clearwater, Florida, in 2013 at the age of 62. After
winning his battle to wear a black arm band to school to protest the Vietnam War,
Mr. Eckhardt went on to pursue a career in social work, where he worked tirelessly to
obtain child-support payments on behalf of children who could not pursue them on their
own. He published a book on the rights of psychiatric patients and was a strong
advocate for the rights of prisoners. And, of course, he spent his life as a strong
advocate of the First Amendment, often writing and lecturing about it. Winning a battle
with the Des Moines school board did not turn Mr. Eckhardt into a scofflaw; it turned him
into a principled adult who understood his own power to stand up for members of his
community (children, prisoners, psychiatric patients) who were not able to stand up for
themselves. His one-time adversary, the Des Moines school board, is today rightfully
proud of Mr. Eckhardt and even invited him to return to his old high school as a guest
lecturer to teach the students about the important Supreme Court case of which he was
a part. I don’t know that he would have grown up to be as remarkable of a man if the
lesson he had learned, instead, was that his best move was to avoid punishment by
remaining silent about something he deeply believed to be wrong.
Sincerely,
Dr. Jennifer Morley
Jennifer L. Morley, Ph.D
President, Greater Tampa Chapter,
ACLU of Florida
cc:
Angie Murphy, Principal ([email protected])
Kurt Browning, Superintendent ([email protected])
Jeffrey S. Solochek, Tampa Bay Times ([email protected])