A fast-moving lawsuit filed and ruled upon last week by a federal district judge highlights fundamental and recurring flaws in the judicial treatment of First Amendment freedom of expression, with plenty of blame to go around among various actors in our constitutional system.
The dispute arose at Grand Valley High, a rural public high school about 45 miles from Grand Junction, Colorado. Earlier this spring, Naomi Villasano, a senior at Grand Valley, expressed her desire to wear—at her graduation ceremony scheduled for Saturday, May 27—a sarape-style sash depicting images inspired by both the Mexican and American flags. Villasano, an Honors student who was born and raised in the United States, identifies as Mexican American; her parents immigrated from Mexico, and her paternal grandfather, who is from the Jalisco state in Mexico, has been a formative influence in her life.
When she first talked to school authorities in March about her desire to wear the sash along with her other regalia at graduation, she was told by one of her teachers that such attire would not be permitted under a rule laid down by Grand Valley’s principal, Kelly McCormick. On April 5, Villasano, along with other graduating seniors, received a letter laying out rules specifying circumstances in which graduation caps could be decorated by individual graduates. The letter made no mention of sashes, garlands, or the like, but as to caps it said:
It is appropriate to put the following on your cap[:]
– Thank a parent, grandparent, teacher, friend
– Recognize the university you will be attending
– your graduation year
– the branch of the military you will be joining
– flag of a country as recognized by the the [sic] United Nations
The day after receiving this letter, Villasano sought to discuss the sash she wanted to wear with Principal McCormick but was told by the principal’s administrative assistant that such a sash would not be allowed. After further efforts by Villasano and members of her family, Principal McCormick offered to connect Villasano with the School Superintendent, Jennifer Baugh, to discuss the matter further. According to the district court, on April 13, Dr. Baugh wrote to Villasano:
that [Villasano] could not wear her sash (mistakenly identified as a pin) because if the School District permitted the wearing of a flag of a country’s nationality, “there are at least three flags that would be offensive to people because of what they represent in the past and current history.” In that correspondence, Dr. Baugh [did acknowledge that some sashes are allowed, but] indicated that sashes or cords [permitted] during graduation typically represent membership in a nationally recognized organization; other distinctions such as class honors; future military service; or “regalia that is part of a Native American or Pacific Islander tribe.”
After further (and somewhat extensive) efforts to obtain permission failed to resolve the issue to Villasano’s satisfaction, she filed an action in federal court last Wednesday, May 24, asking the court to block implementation of Grand Valley’s policy to the extent that such policy would not permit her to wear the sash at graduation on Saturday, May 27. The complaint raised claims under the First Amendment of the U.S Constitution (made applicable to states and local governments by virtue of the Fourteenth Amendment) as well as under Colorado state law (the state constitution and a state statute). In the balance of this column, I address only the federal constitutional claim.
The district court held a hearing on Villasano’s claims on Friday, May 26, and that same day issued a ruling upholding Grand Valley’s authority to prohibit her from wearing the sash. In rejecting Villasano’s request for relief, the court relied primarily on its view that Villasono’s claims on the merits, including the First Amendment claim, were unlikely to succeed. And in analyzing the First Amendment claim, the district court felt the key question was whether the wearing of the sash was “private speech” by the student, in which case First Amendment protection would be robust, or instead was “school-sponsored” speech, that is, speech that “students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” If the speech in question was school-sponsored speech, then Grand Valley could restrict it so long as the restriction was “reasonably related to legitimate pedagogical concerns”—a standard the court admitted was quite lenient. Importantly, observed the court, “restrictions on school-sponsored speech need not be viewpoint neutral” but instead can discriminate based on point of view.
So far, so good. It was in navigating this fork in the doctrinal road that the district court ran into a ditch. In answering the crucial question, the court concluded, strangely enough, that the wearing by individual students of sashes, or cords, or flags attached to caps, etc. was speech not by the students, but essentially speech by the school itself. (In this regard, the court’s preferred term, “school-sponsored” speech, is essentially the same idea that goes by the “government speech” label in other settings.) Why did the court think the wearing of particular symbols by students came with the school’s imprimatur and was essentially conveying the school’s own message? Because, the court said, the school exercises very tight control over precisely which symbols may be worn and which may not be. The more aggressively the government has dictated what can be worn and what can’t, the more the speech becomes that of the government itself, rather than of the individual students being regulated. As the court put things: “[Villasano’s] emphasis on the School District’s decision to ‘allow[] some expressive sashes while prohibiting hers’ is, for school-sponsored speech analysis, a recognition of the reality that, in practice, the School District controls the attire which graduates wear during the graduation ceremony.”
There are many intuitive ways to see that the district court’s reasoning and result here are flawed. First, it doesn’t make any sense within a larger First Amendment framework that the government’s exercise of tight control over all speech that occurs at a government-facilitated event could by itself be the inevitably dispositive factor. If government could turn (otherwise impermissible) regulation of private speech into (permissible) regulation of “government-sponsored” speech simply by more comprehensively regulating all aspects of private expression, protection of unpopular ideas could suffer tremendously. Indeed, outside the context of traditional public fora (which are increasingly less relevant in the modern world), the government would be able to proscribe what can and can’t be said altogether on all public property. For example, if a public airport aggressively withheld for itself the power to ban any leaflets whose messages it found unattractive, the Villasano court’s reasoning would allow the prohibition of leaflets in favor of a lenient immigration policy even as airport authorities permit leaflets against open borders. And on the facts of Villasano, the district court’s rationale—that the school has exercised full control over all expressive aspects of graduation, such that it has carte blanche to pick and choose, even among viewpoints—would mean that Grand Valley could allow students to wear pro-choice sashes but at the same time prohibit the wearing of pro-life sashes. Surely this can’t be.
Control—the essence of the district court’s rationale—is, as many U.S. Supreme Court Justices have pointed out in other government-speech cases, a circular kind of argument about government power: government has unfettered authority simply because government has exercised authority aggressively. And deciding what is and is not government speech—just like resolving other constitutional questions, like “reasonable expectations of privacy,” that could devolve into circularity—has to be much more complicated than that. As Justice Alito’s 2017 majority opinion in Matal v. Tam (rejecting the federal government’s argument that the registration of trademarks constituted government speech) powerfully put the point (with my emphasis added):
[W[hile the government-speech doctrine is important—indeed, essential [insofar as government has to be able to speak sometimes] —it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.
Yet another way to see that the district court in Villasano erred is to step back and ask, as a basic real-world factual matter, whether there is any sense in which Grand Valley administrators actually stand behind all the individual students’ messages on their graduation caps or on all the sashes that are permitted? And that reasonable outside observers would so conclude? Superintendent Baugh told Villasano that Villasano couldn’t wear the sash in question because some people are offended by the policies of some countries, and allowing Villasano to wear the sash would subject the school to a slippery slope of conflict and controversy. And yet the school’s written policies themselves allow students to have on their caps flags of all countries recognized by the United Nations. That roster of nations includes: North Korea, Iran, China, Russia, Israel, and a host of other countries whose policies are very controversial. (Palestine and Vatican City are also arguably “recognized” by the UN, given their status as “permanent nonmember observer states.”) Indeed, Baugh adverted to “at least three flags that would be offensive to people because of what they represent in the past and current history.” And yet (assuming those three unnamed countries are recognized by the United Nations, which is almost certainly the case), students are free to wear those countries’ flags on the graduation mortarboards by the very terms of the school’s written policies. Does Grand Valley endorse the policies of all the governments whose flags students have been allowed every year to depict on mortarboards?
Even something seemingly as simple as the university a Grand High Valley graduating student will be attending (another item the written policy permits each student to identify on her graduation cap) can be controversial. If a student is planning to attend Bob Jones University—a place notorious for practicing racial discrimination—and so signifies on his cap, does Grand Valley really affirmatively endorse that decision? And would reasonable observers so conclude?
So deeming all the students’ wardrobe decisions that are permitted by Grand Valley to be speech engaged in or sponsored by the school itself doesn’t work, analytically, practically, or empirically. None of this is to say, however, that Grand Valley has no significant authority to control graduation attire. A ban on all adornments to the standard-issue caps and gowns, or even a ban on all sashes—in support of visual uniformity—might be ok; such bans would be content-neutral time, place, and manner restrictions, which are generally significantly easier to justify than are content-based limitations on speech. But once sashes celebrating Native-American or Pacific-Island heritage are allowed, yet sashes celebrating Mexican-American heritage are not permitted (and remember, Superintendent Baugh wanted to ban Villasano’s Mexican-American symbol even when Baugh thought it was a small pin unlikely to interfere much with visual uniformity, rather than a large eye-catching sash), then substantial First Amendment problems (and perhaps also equal protection problems given the particular ethnic discrimination in which Grand Valley might be engaging) arise.
So how could the district court have gotten things so wrong? Who’s to blame? Well, the judge and her clerks bear some responsibility. In this regard, one line in the district court’s opinion stuck out to me. The court at one point, in setting up its holding, used the phrase “[a]ssuming without deciding that it is doctrinally possible to engage in private student speech at a school-sponsored event . . . .” What? How could that not be doctrinally possible? In Tinker v. Des Moines, the seminal student-speech case, the Court held that public high school students had a First Amendment right to wear armbands protesting the Viet Nam War on campus in their classes, at recess, at lunch, etc. If classroom instruction (where, again, the students had a right to wear the armbands insofar as the armbands were unlikely to cause any disruption) isn’t a school-sponsored event, I don’t know what is. When a court utters a line like this one, I begin to wonder whether the judge and her staff have a very sophisticated understanding of how all the pieces of the free-speech doctrinal picture fit together.
But that brings me to another big culprit in this episode: the Supreme Court itself. As many commentators have observed, the analysis in its government speech cases often lacks nuance and sometimes borders on the laughable. Justice Breyer’s conclusion and discussion in Walker v. Texas Division, Sons of Confederate Veterans, in which the Court found that specialty license-plate designs—such as “Get it Sold with Remax,” or “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll”—constituted speech by the government of Texas (whose flagship public university is a robust athletic rival of Michigan State and Alabama, by the way) was just about as farfetched as the district court’s analysis in Villasano. I don’t know any commentators—left or right—who think the majority opinion in Walker made sense on its own terms. (For analysis of the implausibility of Justice Breyer’s writing there, see Justice Alito’s rapier dissent in the case, and also my earlier Justia column on the topic.)
Indeed, the Supreme Court may be more to blame than the district court in Villasano, because the Court has the benefit of full briefing and argument, and much time to study matters, before issuing rulings. The Villasano court had no such luxury because the complaint was filed on Wednesday, just three days before the graduation ceremonies in question. Of course it would have been nice if the district court had displayed better First Amendment instincts, but even here part of the blame for the erroneous analysis might be laid at the feet of Ms. Villasano herself. I know she had been (diligently) trying to work things out with school authorities for months, but delaying the initiation of the legal challenge until May 24 really put the judge in a difficult time-pressured position. The doctrine of laches penalizes a party who unreasonably delays filing an action in ways that prejudice another party, but the same principle should also prevent parties from unnecessarily putting courts in harried situations.
And last, but not least, we in the legal academy are to blame. We simply aren’t succeeding in teaching our students (who as recent graduates go on to clerk for judges in federal and state courts) sophisticated constitutional doctrine (in the First Amendment and elsewhere) in ways that help develop the good instincts that are needed to decide cases correctly when time to research and deliberate is short. Although it is hard to measure the frequency and magnitude of doctrinal blunders by lower federal courts, most of my academic colleagues with whom I have discussed the matter share my view that gaffes are much more common and much more fundamental in recent years than they were a few decades ago. And given the myriad ways in which doctrinal instruction in law schools has changed this century (some for the better, others not so much), I am not really surprised.
A post-script: Even though, as discussed above, Villasano lost in court last Friday, she went ahead and wore her sash at graduation the next day! Evidently no one from the school tried to stop her (indeed, by Villasano’s account, one teacher on Graduation Day seemed to suggest to Villasano that no effort to block her would occur), and I haven’t seen mention yet of any attempt by the school to discipline her in any way (by, say, withholding the actual diploma or rescinding letters of recommendation, etc.) This is a reminder, of course, that a judicial ruling permitting government regulation is not the same as a ruling requiring such regulation, and maybe school administrators, content with the district court’s (overly broad) vindication of their authority, decided to do the right constitutional thing. Or at least the generous thing. I wouldn’t go so far as to say the district court’s mistaken analysis is thus “harmless error,” but I am heartened that freedom from impermissible censorship did, apparently, carry the day in this instance.
