Editor’s note: This commentary is by Norman Arthur Fischer, a retired professor of philosophy from Kent State University who has lived in Burlington since fall 2015.
An absolutely clear violation of the First Amendment has occurred in Vermont and no one seems to care.
As reported in VTDigger, on June 12 the Windsor School Board placed Tiffany Riley, principal of Windsor High School, on leave solely because of a political statement on Facebook critiquing some aspects of the Black Lives Matter movement.
The federal courts have long established that all state officials are legally obligated to follow the First Amendment, and specifically that teachers and school administrators have First Amendment rights. Pickering v. Board of Education established definitively that Pickering could not be disciplined for writing a letter to a newspaper.
In the case of Connick v. Myers, the Supreme Court clarified that the more the speech in question is a matter of public concern, the more the First Amendment right becomes stronger. Although this clarification harmed some First Amendment claims by teachers and school administrators, to the contrary it buttresses Riley’s First amendment claims, since the clearest example of speech manifesting public concern is political speech, which Riley’s Facebook comments clearly were.
The censorship of Riley violated Justice Robert Jackson’s statement in West Virginia v. Barnette, 1943, that “No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess, by word or act their faith therein.“
This ringing declaration underlies some of the most important Supreme Court First Amendment decisions since the case was decided in 1943. Although the specific issue that was resolved was that Jehovah Witness students could not be disciplined for not saluting the flag, the ruling was soon extended to prohibitions against state rules forcing anyone to pledge allegiance to the flag. In 1989 the Supreme Court extended the ruling to prohibit laws against burning the U.S. flag.
However the extension of West Virginia most relevant to defending Riley is the 1992 ruling in R.A.V v. City of St. Paul. This case made clear that all First Amendment rulings must adopt the principle of neutrality toward viewpoints first established in West Virginia. Using this principle Justice Scalia, writing for the majority in this unanimous decision, struck down the St. Paul ordinance against hate speech that had led to the prosecution of the minor R.A.V.
For Scalia the St. Paul ordinance violated the viewpoint neutrality doctrine that had been established by West Virginia. R.A.V. was then used by lower courts to strike down what was regarded as one of the most sophisticated hate speech codes ever developed, in Corry v. Stanford, 1995.
So, even if an actual speech code had been cited to justify disciplining Riley for her remarks, the attempt would not have met constitutional muster. But there was no speech code used to discipline Tiffany Riley. Instead the highest law of the land was trashed because some students and the board disagree with Riley’s political opinion.
