This commentary is by Rodney Smolla of Strafford, a nationally recognized constitutional scholar and litigator, and president of the Vermont Law and Graduate School.
Freedom of speech is protected under the First Amendment. Harassment is not. A lawsuit filed in Vermont federal court arising from the controversy surrounding allegations of harassment targeting a transgender student on the Randolph Union High School girls’ volleyball team challenges us on how to tell the difference.
The transgender student and the Randolph high school claim that the transgender student was the victim of harassment after the student entered the girls’ volleyball team locker room. The alleged transgressor was briefly suspended and required to participate in a restorative justice circle illuminating the legal rights of students to access accommodations in a manner consistent with their gender identity.
The disciplined student and her parents claim they are being punished for exercising their freedom of speech.
So how does the law draw the line?
First, there must be a clearly written rule. School officials can’t just make up the standards as they go along. On this score, the Randolph school officials are on solid ground. A Vermont statute defines “harassment” as conduct “motivated by” another student’s “race, creed, color, national origin, marital status, sex, sexual orientation, gender identity or disability,” if that conduct “has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment.”
Second, the Vermont law must not conflict with the Constitution. The First Amendment strongly protects expression in the general marketplace of ideas — on streets or parks or internet postings. Yet that protection partially gives way to other societal values in certain special settings, such as within public schools.
There are things citizens are free to say while marching in the street or trolling online that they are not necessarily free to say while attending public school. Even so, students do not check their free speech rights at the schoolhouse gate.
The constitutional principles governing speech in public schools remain an ongoing work in progress. Yet I believe, as an experienced constitutional law scholar and litigator, that the Vermont law should be upheld as consistent with the First Amendment. The Vermont law requires that the speech be “motivated by” the identity of the targeted student (here, the identity of the student of transgender), and that it has the purpose or effect of substantially interfering with the educational environment.
Distilled to its core, the key issue is whether the law legitimately protects targeted student victims from palpable harm, or instead illegitimately penalizes students for opposing the political or ideological viewpoints that the school has embraced.
A student has a free speech right to express views on public policies involving transgender athletes. A student does not have a free speech right to specifically target and harass a transgender athlete.
Third, a federal judge — acting as a “gatekeeper” to safeguard free speech rights while simultaneously respecting Vermont’s right to safeguard the well-being of all its students, including transgender students — must determine whether the specific statements made in this controversy could be regarded, by a jury, as crossing the line from the expression of opinion to targeted harassment. Then, if it comes to it, a federal jury instructed by the judge on the law will hear evidence on the “who, what, when and where” and decide the facts.
I am an ardent advocate for protecting the human dignity of all within the LGBTQ+ community and feel particular empathy for protecting trans persons from the cruel slings and arrows to which they are so often unjustly subjected.
Vermont has good reason for adopting laws protecting those persecuted for their gender identity. We know that high school students from the LGBTQ+ community are far more likely to be bullied and harassed than straight students, and far more likely to suffer deep and lasting wounds as a result.
I also have an abiding faith in our legal system. It is important that we respect the process, and that all sides have the full and fair opportunity to present their arguments, legal and factual, to the judge and jury, in the confidence that they will follow the law and do the right thing.