By Seth Richardson
Unfortunately, Erica Corder has lost her appeal to the United States Supreme Court. But she didn’t lose her case on the merits, she lost as a result of legal technicalities and because her attorneys failed to make the right arguments.
To recap, Corder departed from her approved valedictory speech at her 2006 graduation ceremony at Lewis Palmer High School in Monument. Instead of the approved speech, she spoke about Jesus, which infuriated the school administrators. After the graduation ceremony was complete, Corder was escorted to the Vice-Principal’s office, where she was told she would not be receiving her diploma, and was required to meet with the Principal, Mark Brewer. She and her parents met with him on May 30, 2006, where Brewer told her that if she did not publicly apologize for her speech, she would not receive her diploma. Corder wrote an explanation, not an apology, but was forced by Brewer to add the sentence, “”I realize that, had I asked ahead of time, I would not have been allowed to say what I did.”
Corder sued the school district on a number of grounds, and lost at every level. But she shouldn’t have lost, and here’s why: At the time that Brewer coerced Corder into making an apology, Brewer had no legal authority to discipline Corder because she was no longer a student. Therefore, Brewer’s threat to withhold her diploma was an unlawful denial of Corder’s right to receive documentation of her successful (and exemplary) completion of the public school curriculum. Corder should have refused to make an apology and sued Brewer and the school district for refusing to issue her diploma. She didn’t, and that’s ultimately why she lost the case.
What happened is that Principal Brewer, pissed-off at the breach of trust and decorum, which is understandable, tried to engage in one last, desperate act of educational discipline against a former student. His dog-in-the-manger, authoritarian behavior has cost the taxpayers of the district many thousands of dollars in legal expenses, for no better reason than an institutional pique over a harmless act of defiance by a graduating valedictorian.
The attorneys for the district argued that Corder’s religious statements had the “imprimatur” of the school district merely because the graduation ceremony was orchestrated and supervised by the school, and the courts agreed that this justified the disciplinary action by Brewer. This is legalistic pettifoggery and rank idiocy, and the courts involved bought into it, no doubt to bolster the power of principals at the expense of the civil rights of students. The notion that a rational, reasonable adult attending a high school graduation would mistake the obviously personal religious statement Corder made as some sort of state-sponsored official proclamation is utterly asinine.
Here’s what Corder said:
“We are all capable of standing firm and expressing our own beliefs, which is why I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in heaven. His name is Jesus Christ. If you don’t already know Him personally I encourage you to find out more about the sacrifice He made for you so that you now have the opportunity to live in eternity with Him.”
Anybody think this represents official school policy? Anyone? Me neither.
But all this is pretty much surplusage, because the case was actually dismissed on the grounds of “mootness” and because Corder failed to present a proper Due Process claim at trial. The District Court ruled that because Corder has graduated, the school district “can no longer impinge on Plaintiff’s freedom of speech and religion. Accordingly, Plaintiff’s claims for declaratory or injunctive relief based on such conduct are moot.”
As for Corder’s complaint that the school coerced and compelled her to issue an apology against her will, the District court said, “Since Plaintiff does not assert a due process claim, I see no constitutional implication from the school allegedly using the diploma as leverage for the apology.”
In other words, the District court was able to dodge the most important question, that of compelled speech, because Corder’s attorneys failed to properly raise the issue of due process.
But due process is precisely what this case is about.
This is a serious issue. School administrators across the country use this coercive tactic of threatening to withhold diplomas in order to punish misbehavior by graduating seniors and theoretically coerce good behavior at graduation. The core legal issue is whether school administrators have, or should have, any such after-the-fact legal authority over newly-minted adult high school graduates. The desire on the part of the school administration to hold a club over the heads of graduating students, as a means of preventing disruptive or inappropriate behavior is understandable, but the ends do not justify the means. Constitutional rights are more important than proper decorum at a graduation ceremony.
The root question is when does a student cease to be a student? When, exactly, did Corder become a “former student” and therefore an adult citizen fully vested with civil rights and no longer under the dominion, control or disciplinary authority of the school? This question is a critical one because it determines where the authority of the school to threaten to withhold a diploma ends, and where a high school graduate’s right to demand that a diploma she has earned through meeting the scholastic requirements be given her begins.
Federal District Court Judge Walker D. Miller completely ignored this critical aspect of the case, and wrote,
“As discussed, the school district was within its legal authority to exert editorial control over school-sponsored speech at the graduation and to insist on an apology and clarification for Plaintiff’s conduct in evading such efforts at control and thereby associating the school with a position other than neutrality on religion.”
The issue of “editorial control” aside, Miller builds his ruling on the legally unsubstantiated premise that the school had authority to “insist on an apology” from Corder. No, sorry, the school had no such authority because at the time that the school insisted on an apology, using an unlawful threat to withhold her diploma, Corder was absolutely not a student any longer, since the meeting took place days after the ceremony. Moreover, claims that the school might be held liable for sponsoring “religious speech” for Corder’s acts are legally invalid, since Colorado has a law that explicitly states that schools are not to be held liable for the exercises of free speech by students.
The sad fact is that the only hold that Brewer had over Corder was her diploma, and he was intent on humbling her for her temerity and defiance, so he abused his authority, and cost the taxpayers a bundle in the process.
Does the fact that the school has not yet handed her a piece of paper mean that she remains under the dominion and control of the school and has not graduated? If so, then what of the graduate who does not attend the ceremony whose diploma is mailed to him? Is he a student until the Post Office delivers his diploma? Could Brewer legally deny her a diploma forever if she had refused to accede to his coercion? I think not. It defies common sense and justice to even contemplate granting school principals such plenary authority to determine who may or may not receive a diploma.
I think that a high school student graduates and ceases to be a student upon the successful completion of the required curriculum and the end of the instructional period, not whenever the school principal decides to confer a diploma upon the student. A diploma is earned through scholastic achievement and may not be arbitrarily and capriciously withheld by a school administrator out of pique or anger over a bit of harmless defiance of custom.
Most certainly a school principal has absolutely no authority to coerce a free adult into making an apology once the authority to impose discipline upon a student has been rendered moot by her completion of the educational program and graduation. If Corder’s complaint is rendered moot by her graduation, as the court held, then Brewer’s authority to discipline her is likewise rendered moot.
What’s sauce for the goose is sauce for the gander.
© 2009 Altnews
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Is this the same Mark Brewer that was Asst Principal at Chapperal HS in Parker CO? …and now is going to be principal at American Canyon High School in CA? If they are different persons, then I apologize for linking them together.
She did get her diploma after the “explanation with coerced statement” was sent by email to various people.
She sued in order to try to establish a court precedent that would prohibit school officials from censoring or exercising prio restraint on valedictorian speeches. This was a valiant attempt to settle the issue in the appropriate venue, the courts.
Unfortunately, she played the game a bit wrong, and the courts, as they are wont to do, evaded having to address the root issue through legal, but in my view, cowardly evasions and legalistic pettifoggery.
The courts have been doing this on such cases for a long time.
If you try to claim prior restraint by complaining BEFORE you graduate (by having to submit your speech for approval), the courts say that the school has the authority to review student speech and require particular standards or content because of “pedagogical concerns.”
But if you try to claim censorship at a graduation ceremony, the courts rule your claim “moot” because once you graduate (either before or moments after the ceremony) you are no longer subject to censorial control by the school, and therefore your rights cannot be infringed. This is based on a judicial rule that requires courts to only address “actual controversies.”
This creates a catch-22 where you can’t object before the fact, because you’re a student with limited rights, and you can’t object after the fact because it’s a one-time deal and you’re not going to be harmed again.
This is a convenient, but reprehensible way for the courts to evade actually addressing the issues I brought up of when, exactly, is a student no longer a student, and what authority does a school district have to censor speeches at graduations ceremonies.
The courts don’t want to address the issue, and they want to leave all the power and control in the hands of the school district, and care nothing for the rights of students.
Wait a minute, if she was required to add the sentence,
“I realize that, had I asked ahead of time, I would not have been allowed to say what I did.”
Didn’t that make her explanation an “apology” and satisfy the requirement for an apology? Why else demand that sentence be added? Since she did add it, why wasn’t that the end of it and she given her diploma? What was the point?