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Vero Beach High School Has a First Amendment Problem

June 8, 2017 - 6:00am

Vero Beach High School on Florida's east coast, has failed to respect the First Amendment.

And now a student --J.P. Krause, a top student, rising senior, our client, and the young man who should serve as VBHS senior class president in the coming school year -- understands better why the Constitution requires public institutions, like his school, to respect the constitutional rights of its students. 

Because here the public school punished J.P. for a humorous campaign speech he made; it disqualified him from the election only after he won the election. Quite the unconstitutional daily double pulled off by the school administrators -- they not only unconstitutionally deemed the third place candidate the winner, but took away the voting privileges of its entire senior body class who elected J.P. president.

The school says he “humiliated” the candidate who came in second by way of his 90-second impromptu campaign speech, a speech given in class with his A.P. U.S. History teacher’s permission. Thanks to a student who recorded the speech and shared it with J.P., we know that he did no such thing. You can see for yourself.

As you can see, the video reflects nothing more than good-natured, All-American campaigning for office. But the school says otherwise. It says it’s broadly written “anti-harassment” code of conduct allows it to disqualify J.P. from the race because of this speech.

The Constitution says differently. As we explained in our letter to the school administration on J.P.’s behalf:

The First Amendment protects speech that might offend others. In Tinker v. Des Moines Independent School District, 393 U.S. 503, 512 (1969), the United States Supreme Court recognized “neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

The Court held that a school may not censor a student’s speech unless it caused a substantial disruption of, or a material interference with, school activities. J.P.’s speech caused no substantial disruption of, or material interference with school activities or the rights of other students. His speech simply asked his fellow students for their support in the upcoming student election.

To be sure, if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him. See, e.g., Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). But that is not remotely the case here.

J.P.’s speech did no more than involve light-hearted humor by associating his opponent in satirical manner with current political and cultural events. His speech directly referenced national political campaign topics, such as Communism, raising taxes, and President Trump’s stated intention to build a wall on our country’s southern border. Nobody could have taken his comments seriously; that is, no reasonable person believes his fellow candidate for the presidency is a Communist, wants to raise the students’ taxes, or favors Sebastian River High School rather than her own high school. Yet VBHS Principal Shawn O’Keefe claims in an email to J.P.’s mother that J.P.’s speech violated the harassment policy because he “publicly humiliated” his opponent. 

Accepting that preposterous claim for the sake of argument, the Supreme Court has held time and again, both within and outside of the school context, that the mere fact someone might take offense at the content of speech is not sufficient justification for prohibiting it. See Tinker, 393 U.S. at 509. As subsequent federal cases have made clear, Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance. Here, we have no fear of disruption, let alone a specific or significant fear.

We further explained that the school’s code of conduct policy regarding offensive speech violated the First Amendment, as well:

J.P. Krause
J.P. Krause

The Student Handbook broadly defines harassment as “any threatening, insulting, or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that: 1) Places a student or school employee in reasonable fear of harm to person or damage to property, 2) Has the effect of substantially interfering with a student’s education performance, opportunities, or benefits, 3) has the effect of substantially disrupting the orderly operation of a school.” Handbook at 30-31.

The policy’s broad ban on “verbal conduct” is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school district’s harassment policy as overbroad, holding that even speech that is defined as “harassing” may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the school’s harassment policy improperly swept in those “simple acts of teasing and name-calling” that had previously been held to be protected by the First Amendment. The policy’s language in that case barred speech that has the “purpose or effect of” interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. 

Judge Alito explained that even if the speech created a “hostile environment” that “intrudes upon ... the rights of other students,” it is not enough that the speech is merely offensive to some listener, because “there is no categorical ‘harassment exception’ to the First Amendment’s Free Speech Clause.

The school’s harrassment policy -- like the one at issue here -- had no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar “core” political and religious speech (like J.P.’s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a student’s First Amendment rights.

Likewise here, J.P.’s speech has been targeted by the school district’s harassment policy, a policy that is similarly overbroad and unconstitutional. J.P. did not create a substantial disruption -- to the contrary, the video of the incident reflects that the ‘speech’ allowed for 90 seconds of lighthearted fun, and clever political satire, in a high-level academic class.

What’s particularly striking about this misuse of a speech code is the fact that the student handbook promises to deliver a much more robust institution for its public school students. 

In the handbook, VBHS and the Indian River County School District claim the school must “prepar[e] all students to thrive in college, career, and community endeavors.” In the 21st Century, we should expect to hear opinions we may not personally agree with and stand ready to engage those opinions in the marketplace of ideas. Vero Beach High School does its students no service to punish a student for innocent humor conducted as part of a school election, with an A.P. U.S. History teacher’s permission. 

To the contrary, the school’s misuse of its Code of Conduct unjustly steals the election and brands his record with a “harassment” charge, unconstitutionally interferes with J.P.’s educational opportunities, and jeopardizes his college admission possibilities.

The classroom has been recognized by the Supreme Court of the United States as the “marketplace of ideas,” and the high court has emphasized the “nation’s future depends on leaders trained through wide exposure to that robust exchange of ideas.” 

High school students, particularly those campaigning in a school election for senior class president, cannot be punished for innocuous humor and political satire of the sort J.P. engaged in. The Constitution forbids it. PLF optimistically believes that VBHS administration and the local school board will think better of the decision to punish J.P. and reverse that decision.

Mark Miller is the managing attorney of the Pacific Legal Foundation's Alantic Center, based in Palm Beach Gardens. Super Lawyers named Miller a Florida Super Lawyer for 2014-15 and 2015-16. He is vice-president of the Martin County Bar Association and serves as an adjunct scholar for the James Madison Institute in Tallahassee.


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I worry about our society when a students humorous impromptu class campaign speech becomes cause to void an election result. Campaigns require speeches. They result in elections with winner and losers. To vacate an election is a horrifying lesson, by a public government employee. To hold a position of power and trust, to abuse children in front of a community and undermine the ideals of our nation is just horrifying. And to hear some of the comments defend this action as reasonable only demonstrates that illicit drug use is rampant in our society. This action by Shawn O'Keefe is indefensible. He needs to be released, removed, fired and/or arrested for his conduct unbecoming an American.

Where's the go fund me page? I want to donate to this kids defense.

Thanks Mr. Miller for a well-reasoned op-ed that clearly shows that VBHS doesn't understand Constitutional rights...what's more scary is that schools are supposed to be teaching the Constitution to their students, and they obviously don't understand what the Constitution says or means...this is just a continuation of the "safe space" mantra of the liberal left "intelligentsia" who deem any contrary opinion as offensive...which leads to the REAL question: what are schools teaching our children? be offended by anyone else's opinion?...Mr. Miller is correct in advocating for Mr. Krause's rights, because someone needs to insure that the Constitution is followed for EVERYONE

Truth is absolutely correct. "The law is the law." And to heck with so called "super" attorneys (only in their minds) who muck up everything they see and touch!

The law is the law.

Parents, get your kids the hell away from K-12 indoctrination centers. They suck.

"Stick a lawyer in the mix", and he will ALWAYS muck up ANY benign situation his attention weighs upon,.. to the point of burdensome oppression.

You're an idiot if you think the school should not be challenged. Quit being afraid of lawyers. They exist for a reason.

Shark food?

spoken like a true trailer park Republican... The law is the law, and the attorney makes a good argument for this boy's representation. When your only highlight is watching Fox news all day from the porch, and you are uneducated with no direction, you can begin to understand the jealousy of the practice of law...

Hi "Fart", Try to stay focused, instead of always trying to "get one up" on your "Betters" and trying to insult them with your inane nonsense. I am a tried & true, long time (before the Democrat party was polluted by "your type") registered Democrat who can actually think, reason, and exercise common sense. {YOU say: ..."you can begin to "understand the jealousy of the practice of law.." }... Why "Fart",..I think that you just "outed" yourself..... YOU sound just like a self-important, pettifogging lawyer...Still doing 'property closings', or are you a politician !

C Breeze, I know what you mean. After years and years as a MA Democrat (go Kennedys! No matter what they did), I had to leave the Dem party. I remember the days where Repubs and Dems could sit and discuss or debate. Sadly, those days are gone -- polluted by the hard left who force their views on all of us.

This is neither a benign situation or has the lawyer mucked it up. This is political correctness dribbled down to the secondary school, and no more. The result is unfair and offensive

Funny how you mentioned Fox News. JP was on Fox and Friends Weekend today. He is a very smart kid and he was railroaded by the principal. If he won the school's election then it's obvious even the HS kids understood his humor, but NOT the supposed adult? Hmmm... maybe using the words of the president triggered the principal into a leftist rage. You can't use Trump's words or phrases around the unhinged.

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