Frequent Slashdot Contributor Bennett Haselton writes in "A federal judge rules that a student can seek attorney's fees against a high school principal who suspended her for a Facebook page she made at home. Good news, but how could the school have thought they had the right to punish her for that in the first place? Posing the question not rhetorically but seriously. What is the source of society's attitudes toward the free-speech rights of 17-year-olds?"
Well, you knew this post was coming when you read the news. A federal judge has ruled that Katie Evans, who had been suspended from high school for creating a Facebook group calling one of her teachers "the worst teacher I've ever met," can proceed with her suit seeking attorney's fees from her principal for violating her First Amendment rights. Evans, now a journalism student at the University of Florida, is represented in her suit by the ACLU of Florida.
If any of the recent student online free-speech cases should have been adjudicated in the student's favor, this would most clearly be the one. As Judge Barry Garber wrote in his ruling, Evans's page did not contain threats of violence (if it had, it would have been a matter for the police, not for a school punishment), and the principal didn't even find out about the page until two months after she took it down. It's hard to believe that the principal's lawyers, if he consulted with them, would have gone along with a recommendation to suspend the student. And once the Florida ACLU contacted the principal, wouldn't he have realized that the longer he fought the case, the more legal bills the ACLU would amass, along with the possibility that the principal could be ordered to pay them? Even if he had estimated that there would only be a 5% chance that he could end up being ordered to pay legal fees, was it worth the risk, if the fees could come to thousands or tens of thousands of dollars? Well, now he knows.
When a different judge ruled that a student had no right to challenge his suspension for making a vulgar Myspace page about his principal, I said that there was no more objective basis for saying that the ruling was legally "right" than it was "wrong," because if you put 10 judges in separate rooms and ask them how they would rule on the case, you could get 10 different, mutually contradictory answers. Well, fair is fair — even though I support Judge Garber's ruling 100%, I have to concede that it did not necessarily follow inevitably from the facts and the law, and there's no objective basis for calling it "the" right ruling. Judges are not like doctors who look at a mammogram, and draw on experience that the general public does not have, in order to see something that would be hidden from the rest of us. In cases like these, judges simply have multiple plausible interpretations in front of them, and they pick one. As such they're acting more like referees (who make a decision so that the game — or, in this case, society — can move on) than true "experts."
There is a temptation to think that there is some consistent reasoning behind the different courts' rulings — say, that the student who created a vulgar page mocking his principal (the student was identified in papers only as "J.S.") went too far and crossed a line, while Katie Evans's page complaining about her teacher was clean enough to stay on the safe side of the line, and make her eligible for damages in a First Amendment suit. This, I think, is nonsense, an attempt to put a consistent theory on top of a legal system that does not follow consistent rules from one court ruling to the next. If different judges had been randomly assigned to J.S.'s case and Evans's case, then it might have been J.S. who won and Evans who lost. After all, it was a federal judge who once ruled that a Utah high school had the right to suspend a student for wearing sweatshirts emblazoned with "Vegan" and "Vegans Have First Amendment Rights." (The judge and the principal had apparently confused veganism with eco-terrorism.) How do you reconcile that with any of the recent rulings? (No prizes for guessing how that judge would have ruled if the shirts had said "Christian.")
But even if it's still a roll of the dice how a court would rule in a particular student free-speech case, what matters from the point of view of a principal in a future case, are the potential payoffs. What if you're thinking about suspending a student for a non-threatening, non-libelous Facebook page? If the case ends up in court and you win, then you get the satisfaction of being "vindicated." But if you lose, you could be ordered to pay tens of thousands of dollars to the student's attorneys. So even a small number of victories for students in free-speech cases, even if mixed in with an equal or greater number of victories for the schools, still create an enormous incentive for a principal not to risk the case at all, when the potential gain is so small and the potential loss so huge. Even if you think there's only a 5% chance of being ordered to pay the student's $10,000 legal bill, that means you'd still have to decide if it's worth (on average) about $500 to get the satisfaction of suspending them.
(On the other hand, if a student created a page that was so threatening or libelous towards a staff member, that the school would run the risk of being sued if the principal didn't suspend the student, then the school and the principal are taking some legal risk either way, but the risk involved in suspending the student is much smaller. Fine — there's nothing wrong with suspending a student for threats of violence.)
So the ruling is a much more significant victory for student speech than many of the parties involved probably realize. Even though Judge Garber didn't actually award Evans her attorney's fees (yet?) — he only said that she could proceed to seek them against the principal — just the fact that it's coming dangerously close to that, means that principals in future cases now know what the risks are.
But why was all this necessary? How did the legal and societal climate of attitudes toward people under 18, lead to a principal thinking that he could punish a 17-year-old for comments that she made about a teacher, on her own time, to a third-party audience? If the students in the school had been comprised, not of minors, but of adults from some other minority group — African Americans, immigrant women, native Spanish speakers — there's no question that the principal never would have thought he could get away with suspending the student for criticizing a teacher.
Similarly, students at Harriton High School in Rosemont, Pennsylvania just discovered that school officials had given laptops to students to take home with remotely-activated webcams, that could be used to take photos in student's homes and transmit them back to school officials. Incredibly, this was discovered not by students or their parents examining the laptops, but because school officials used the feature to take a photo of a student in his bedroom, and then confronted him about "inappropriate" behavior, not considering that the students and their parents might consider it "inappropriate" that the school snuck spy cams into their bedrooms. (The school has issued a denial claiming, "At no time did any high school administrator have the ability or actually access the security-tracking software" — which doesn't seem to make sense, since the lawsuit was filed in the first place because the student was told by the assistant principal that the webcam had caught him engaging in "inappropriate behavior.") What was the school thinking? Probably, they were thinking, "These are minors, we can do what we want." If their student clientele had been comprised of adults, they never would have dreamed that they could confront a student about behavior in their room that they captured with a hidden camera. (Ironically, the school may end up in more trouble for spying on minors, as this editorial argues, since the school officials may now be guilty of recording and possessing child porn, depending on what the cameras "captured" in the students' rooms!)
So no matter how much ink is spilled analyzing the legal technicalities of suspending a 17-year-old student for off-campus speech, that's not what the case is really about. The case is really about attitudes. Change society's attitudes to think of 17-year-olds the way we currently think of 25-year-olds, and no judge is going to deny them their right to criticize their school on their own time, any more than a judge in today's society would deny that right to a 25-year-old.
And where does this attitude towards minors come from? I suspect that most people who believe that we have to draw the line somewhere around age 18, believe it for no better reason than because they were raised in a society where most other people believe it too. If you think that setting the cutoff age at 18 is just "common sense," then I would bet my house that if you had been raised in a society where the cutoff age was set at 13, that would seem like "just common sense" to you as well, and similarly if you had been raised in a society where the cutoff had been set at 22. This may seem like an unremarkable observation, but my belief in minors' rights has always been motivated by a more fundamental belief that you should not believe things merely because most people in your society believe them. If that sounds like a trite platitude, consider how few people in the US seem to question the rule that you can show a man's chest on television but not a woman's chest. In more liberal Denmark, supermarkets can stock tabloids at toddler-eye-level with photos of topless women on the cover, while in Saudi Arabia, adult women can't leave the house without covering their faces, and in all three societies, the majority thinks these regulations are just plain "common sense." Is the age of majority just another arbitrary illusion caused by the power of consensus?
When I said this on The David Lawrence Show, the host made the thoughtful observation that most countries all over the world set the age of majority for most purposes at 18. Close, I said, but it doesn't quite prove what it seems to prove, because those globally diverse societies did not reach that conclusion independently — they move in similar directions because of cross-cultural influences. (The voting age was set at 21 in many democracies before many of them lowered it to 18 in the 1970's within a few years of each other.) To get a better sense of whether there is any merit to the idea, we'd have to do something like the "putting the 10 judges in 10 separate rooms" test — put 10 different societies in mutual isolation from each other, let them develop and debate things on their own, and see if all or most of them reach the conclusion that 18 us a good cutoff age for adulthood.
The idea that actual children — under the age of, say, 11 — are qualitatively different from adults, has in fact been re-discovered by civilizations that developed independently at different points in history, all over the world. So there's probably something to it. The idea that teenagers are qualitatively different from adults, is something particular to recent history, and a wise person transported forward in time from the 1500's to the present day might scratch their heads and wonder why we think that 18-year-olds should be allowed to criticize their teachers but 17-year-olds cannot. I suspect the artificial extension of childhood grew out of the fact that because modern jobs are more complicated than they used to be, we need more years of schooling before we can go out and compete in the workforce. The fallacy there, though, is that just because we need more years of schooling, doesn't mean that the natural age of "human maturity" has gone up. So we end up with 17-year-olds having to go to court to establish their right to criticize their teachers on their own time.
Judge Garber wouldn't have been in a position to make this argument in his ruling even if he agreed with it. But even if his ruling was based on logic that has nothing to do with the underlying case for minors' rights, it was still a step in the right direction.