Injunctions and harassment

[A.E. Brownstein]

        I had a great deal of respect for the late Leonard Boudin as a person
and an attorney, but I think he may have been wrong in his comments to
Mr. Koven or perhaps Mr. Koven misunderstood Boudin's point and its
application to the discussion of the Alabama case.


        There is a lot that I don't know about the facts of the Alabama case.
But since the issue raised by Mr. Koven is state action, let us take a
worst case scenerio as our hypothetical. Then if we can agree on how that
hypothetical should be evaluated, we can analogize or distinguish the
facts of the actual case.


        I realize that the characterization of the student protestors activity
is in dispute here, but let us assume for the moment that organized
expressive activity that repeatedly targets a single student to demean or
shame him constitutes harassment. Organized harassment of a single
student by a large group of students during school hours is not generally
considered to be protected expression. The Court in
<italic>Tinker</italic>, the seminal student free speech case, clearly
excluded such activities from its holding affirming the free speech
rights of students. The Court explained, "There is here no evidence
whatever of petitioners' interference, actual or nascent, with the
school's work or of collision with the rights of other students to be
secure and to be left alone. Accordingly, this case does not concern
speech or action that intrudes upon the work of the schools or the rights
of other students."


        Organized harassment of one student by a large group of his peers is not
generally tolerated by school authorities. Let us assume that this is
also true in Alabama.


        If the school authorities in this case selectively refuse to enforce the
rules of civil order that are regularly applied to student behavior, how
are we to understand their conduct. Certainly one possibility is that
they are retaliating against the student because he challenged their
alleged violations of the establishment clause. Another possibility is
that they are sending a not very subtle message to the parents of other
students in the community. Challenge our authority and the views of the
majority when you believe that we are violating the constitution and we
will stand idly by while other students at school go after your kids.

Let us assume that these are at least some of the material motives of the
school authorities.



        Would this kind of a deliberate and selective failure to enforce the
rules governing student behavior constitute state action? I think a
strong case can be made that this kind of inaction constitutes a classic
denial of the equal protection of the laws. I would also argue that a
judge would be acting within his constitutional authority to order school
authorities to protect the children in their charge from continued
harassment. Does Mr. Koven think otherwise?


        Again, I don't claim to know the facts of this case. The student
protests in this case may not constitute harassment, school authorities
may generally permit such protests regardless of their message or their
effect on targetted students. The school authorities may have a
non-discriminatory and benign purpose for allowing the protests to
continue. But under the facts I hypothesized, I believe an injunction
would be constitutional.


                                                                                        Alan Brownstein

                                                                                        UC Davis