While the ACLU has largely chosen to forsake its interest in constitutional rights that don’t align with the social justice feelings of its staff, and its donors, it hasn’t entirely lost interest in defending speech, as reflected by the Maine chapter’s support of a high school sophomore at Cape Elizabeth High School.
Aela Mansmann, a 15-year-old sophomore at Cape Elizabeth High School outside Portland, has been at odds with Cape Elizabeth Schools for a month after posting a note in a bathroom that said: “There’s a rapist in our school and you know who it is.” She and two other students who left similar notes were ordered suspended.
As it turns out, there may not be a rapist in her school, and she doesn’t know who it is, but that’s not what her sticky notes were about.
According to Aela, she wasn’t targeting a specific person with the notes; she was calling out a culture in her school in which, she said, perpetrators aren’t always held accountable.
Was her school a hotbed of “rape culture”? Was there some instance, some particular offense, committed there where the rapist wasn’t held accountable? No, but Mansmann was a believer, and as a believer, felt the need to do something about this existential problem.
The ACLU’s filing states that Mansmann has taken a “public stance as an ally for victims and survivors of sexual violence.”
Mansmann said she plans to keep doing that. “I think anyone that has experienced any sort of sexual violence or harassment is especially vulnerable when they are going through their healing process, and to have an ally who is willing to advocate for that, I think is crucial and beneficial,” she said in a telephone interview.
For her actions, the school suspended her for “bullying,” though her notes didn’t name anyone. While they may have given rise to speculation that there was an individual rapist, and may have contributed to an atmosphere within the school of fear and loathing, there was no individual targeted for harm by her words or actions.
“The school is punishing A.M. for attempting to talk about an issue of real concern to herself and other students,” said Alison Beyea, executive director of the ACLU of Maine, in a statement emailed to Teen Vogue. “More and more, young people are leading the way and calling on us all to have badly-needed conversations about difficult issues. Instead of trying to silence them, it is our responsibility as adults to give them a safe forum in which to be heard.
Whether the notes were an “attempt to talk”is a stretch, and whether creating a fear of rape when none existed is the way for a 15-year-old to “lead the way” to “badly-needed conversations” is dubious, but inept efforts by a passionate sophomore don’t always manifest in the wisest way to approach a subject of concern, even if the concern might be less substantive than ideological with a dash of metaphysical thrown in for some emotional spice.
Since Tinker, the regulation of student speech (in public high schools) is generally permissible only when the school reasonably fears that the speech will substantially disrupt or interfere with the operation of the school or the rights of other students.
While the Court held that limitations can be imposed to avoid substantial disruption of a school’s functioning, it can’t be merely generic concerns.
[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.
Did Mansmann’s speech here “bully” anyone? While it might seem to do so by insinuation, and could well have sent other students on a search to find her accused rapist, perhaps pick some random innocent boy and conclude that he’s a rapist and he must be destroyed, that requires some attenuated inferences coupled with other people making unwarranted assumptions. If it happened, it could most assuredly do grave harm to some innocent boy, but when a young woman is filled with panic and passion, what else can she do?
But “bullying” is not the test for restricting speech, even if it’s one of the favored vagaries in educational control these days. What of creating an unwarranted climate of threat, fear and mistrust in Saint Elizabeth High School? Did this affect the ability of students to learn, concerned they would be raped mid-algebra or be dragged out of class by a SWAT team for a frivolous accusation?
Mansmann’s post-hoc rationalization for her actions suggests there were vague problems at the school and she, good ally that she wanted to be, felt compelled to act.
Aela Mansmann: Initially the whole idea was for the notes to be a conversation starter. The survivors and myself had addressed our concerns about the culture and the multiple perpetrators in our school at a school board meeting this past June. We had talked about how these survivors have reported to someone in the building and still no steps were being taken to fulfill [some of] these survivors’ rights. [In a separate meeting with me] the school administration said Title IX* and mandated reporting is confusing, and [they] cleared it up with staff, but that [they’re] all humans, we make mistakes. From my standpoint advocating for these survivors, that wasn’t what I wanted to hear. I didn’t know what I wanted to hear, but ultimately this is their job. This is what they get paid to do. To say, “I didn’t know,” to me, isn’t an appropriate response.
While her method of starting a conversation might have been astoundingly poor, creating a toxic environment and possibly destroying some innocent boy(s) life in the process, she remains a high school sophomore, and 15-year-olds aren’t known for their good judgment. Her speech was directed to a matter of public concern, whether one agrees with her or not, and whatever ill-effects it might produce could have been easily blunted by some adult explanation that there was no individual roaming the halls of Cape Elizabeth in search of a victim to rape. Thus, whatever disruption it might potentially cause could be addressed without punishing the speaker.
Of course, it’s good to see the ACLU take up Mansmann’s cause and involve itself in free speech issues, even if its only because the speech involved touches on another of its sacred social justice cows this time. And Mansmann’s right to express her concerns, regardless of her childish lack of thought about the harm she might cause others, deserves protection and the ACLU’s defense, even if they can’t muster much concern for free speech otherwise.
*The complete lack of clarity in Mansmann’s concerns makes it impossible to determine whether there was any Title IX issue, no less violation. Her calling people “survivors” does nothing to show there was a sexual harassment problem, and her vague dissatisfaction with the school’s handling of unexplained matters provides no basis to assume her concerns had any merit.