PUBLISHED:March 25, 2020

First Amendment Clinic’s First Circuit brief supports student activist’s speech against sexual assault

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Third-year law students Bailey Cage, Aaron Chou, and Craig Jones argue in the brief that the teenager’s speech is core political expression on a matter of public concern entitled to First Amendment protection.

Duke Law School’s First Amendment Clinic has filed an amicus brief in Norris v. Cape Elizabeth School District, currently before the U.S. Court of Appeals for the First Circuit. The case concerns student freedom of expression on high school campuses, particularly as it relates to advocacy against sexual assault.

Third-year law students Bailey Cage, Aaron Chou, and Craig Jones drafted the brief, filed on March 20, under the supervision of Professor H. Jefferson Powell, the clinic director, Supervising Attorney Nicole Ligon, and First Amendment Fellow Ian Kalish.

The brief supports A.M., a student at Cape Elizabeth High School in Maine and a well-known campus advocate for sexual assault survivors. A.M. was suspended for allegedly “disrupting school” after  placing a note in the girls’ bathroom stating: “There’s a rapist in our school and you know who it is.” The high school is appealing the U.S. District Court of Maine’s ruling that found that the school’s suspension of A.M. violated her First Amendment rights.

In its brief, the clinic argues that A.M.’s speech is core political expression on a matter of public concern entitled to First Amendment protection. The brief also raises concern that punishing A.M. for speaking out about sexual assault undermines educational goals and exacerbates the underreporting of sexual assault on high school campuses. The clinic emphasizes the U.S. Supreme Court’s 1969 holding in Tinker v. Des Moines Independent Community School District that high school students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

“As current and future community leaders, high school students should be encouraged to speak out on issues of public concern, especially those that affect young people directly,” said Jones.

Added Chou: “A suspension might seem like a minor inconvenience, but upholding it here sends the message that schools can suppress political speech by students — even if the rest of the nation debates those topics.”

Because the clinic works with the Time’s Up Legal Defense Fund to assist survivors with safely speaking out about sexual assault or sexual harassment, this case seemed especially ripe for it to weigh in on, said Ligon. She noted that a reversal of the district court ruling could negatively impact students’ willingness and ability to come forward regarding experiences of sexual assault.

“I am grateful for the compelling brief that our students put together on this important topic and am hopeful that both our First Amendment and policy arguments will help the First Circuit decide to affirm here,” she said.