Student Council President Vindicates Free Speech Rights on Facebook, But Removed Anyway

The case Lack v. Kersey is a few months old, but with school now back in session and Homecoming season just ending, its lessons are nevertheless still timely.

Student Council President Rueben Lack filed a federal lawsuit seeking reinstatement as the student council president at Alpharetta High School near Atlanta, Georgia.   Lack maintained that he had been removed for exercising his free speech rights on Facebook, while the administration countered that it was because of his “lack of follow-through, lack of respect for advisors, rigidity, and insistence on taking unilateral action” without authority.

Turns out they were both right.  Lack had been given a list of 20 reasons for his removal.  One of them was “unjustly vilifying” his principal and pointing the finger at other council members in a Facebook message to another student.

I’ve previously written a lengthy post exploring the boundaries between First Amendment rights and legitimate discipline in public schools.  As I noted there, the seminal Supreme Court case of Tinker v. Des Moines protects off-campus student speech that does not materially disrupt the pedagogical environment within the school.

Here, the court found Lack’s disrespectful Facebook message to be protected speech under Tinker, because it was non-violent and did not disrupt the learning experience.  It also found another purported reason for his dismissal–Lack’s unauthorized decision to go off-script and promote his debate team in a speech he gave to freshman–likewise protected by the First Amendment.  The court was also troubled by the closeness in time between the Facebook conversation and Lack’s removal.

Nevertheless, the court ultimately concluded that the administration had plenty of other, completely legitimate reasons to remove Lack from office.  Chief among these was Lack’s failure to participate in Homecoming-related spirit activities or to sell Homecoming tickets.  He also shirked a variety of other duties, and was found to have abused his power in relation to other students.

The takeaways here for students and administrators alike are these: courts are becoming increasingly sensitive to the First Amendment liberties students enjoy online, but they are also aware of the complicated situation that school administrators find themselves in.  The staff here did go too far by explicitly punishing Lack’s opinion speech on Facebook.  But the First Amendment did not provide a cloak of immunity for Lack’s misbehavior in general, nor did it tie the administration’s hands from continuing to maintain discipline and a positive educational experience in their extra-curricular activities.