Competition Problem

Below are the facts of the 2011 National First Amendment Moot Court Competition problem prepared by the Vanderbilt University Law School Moot Court Board. Your assignment is to outline the arguments you would make in this case if (1) you were representing Plaintiff Jennifer McCord and (2) you were representing Defendants Rock Fork Unified School District and Principal George Alva. You should construct these arguments based on the First Amendment cases you have read in previous assignments.

Competition Hypothetical

McCord v. Rocky Fork Unified School District

   Plaintiff Jennifer McCord, a 17-year-old 11th grader at Rocky Fork High School in Rocky Pines, Florida, brought this 42 U.S.C. § 1983 claim against the Defendants, alleging a violation of the First Amendment as incorporated by the Fourteenth Amendment. Jennifer is an honor-roll student and a stellar member of the Rocky Fork Varsity Swim Team. She recently placed second in the District Finals. Jennifer alleges that, as a result of her off-campus online poetry critical of the school’s administration, the School District and Principal (collectively “Defendants “) disciplined her in violation of her First Amendment free-speech rights. Because Jennifer created the poetry outside of school as part of her private involvement in an Internet creative community, she argues that the Defendants exceeded their regulatory authority against her for her non-disruptive expression. She seeks nominal damages and injunctive relief under § 1983.

   Rocky Pines, Florida, a small town with over 39,000 residents, is located several miles north of the Miami metropolitan area. Like many Florida cities, Rocky Pines has seen steady growth in its immigrant population over the years, with nearly a doubling of Hispanic immigrants since 2001. Rocky Pines also has experienced significant growth in public school enrollment.

   The Rocky Fork Unified School District is the sole public educational provider in the Rocky Pines metropolitan area. The School District’s only high school is Rocky Fork High School, which serves nearly 2,000 students from the 9th to 12th grade. Since 2006, the student-teacher ratio at Rocky Fork High School has increased from 16 to 21. After the School pushed its earliest lunch service to 10:45 a.m., debate about “crowding” at Rocky Fork High School ensued. Edwin Marsh, a popular editorial columnist for the Rocky Pines Gazette, suggested that harsher immigration policies could “solve Rocky Fork’s woes.” Marsh’s article struck a chord among conservative Internet bloggers, who published several posts critical of the city’s change in demographics, and its “adverse effect” on education in public schools.

   Plaintiff Jennifer McCord has been a student at Rocky Fork High School since 2007, and is a lifelong resident of Rocky Pines. In addition to swimming on the varsity team, Jennifer is an honors student who excels in creative writing. For the past two years, Jennifer has been involved with an online poetry-sharing community known as “Muse-Connect,” a website where amateur writers can post original poetry and short stories online. With the tagline of “Follow Your Muse,” Muse-Connect allows subscribers to “follow” other authors, comment on their work, and share their ideas for new works through the online forum component. Although all works posted on Muse-Connect are public by default, authors can change their account settings to “private,” or “invitation only,” allowing only select subscribers to view their work. Each Muse-Connect subscriber “page” has a unique URL (i.e., web address), featuring the subscriber’s profile and her 10 most recent works, with links to an “archive” of past works.

   Since November 2007, Jennifer has written and posted 32 poems to her Muse-Connect webpage under the username of “JRockySwim.” She posts all of the poems from her personal desktop computer in her parents’ home outside of school hours. Jennifer typically saves each poem as a Microsoft Word document before transferring the text of the poem onto her Muse-Connect page. She also has printed some of these poems and turned in three of them as part of an assignment for her 10th-grade English class. One of the poems, “Heirloom Hands,” even appeared in the Winter 2008 edition of “The Rocky Fork Freestyle,” a school-sponsored showcase of student creative work. “The Freestyle” published Jennifer’s work on a recommendation from her 10th-grade English teacher, Ms. Darla Simms, who encouraged Jennifer to write more poetry on her own time.

   Most of Jennifer’s poems include details and reflections on events in her personal life. “Heirloom Hands,” for example, was a reflection on Jennifer’s grandmother, who had passed away earlier in the 2007-2008 school year. Jennifer received inspiration for the piece after consulting other Muse-Connect subscribers. On Muse-Connect, her “followers” posted four glowing comments about the poem, including one comment about Jennifer’s use of alliteration, and another encouraging her to publish the poem elsewhere. Jennifer attests to being the only known Muse-Connect subscriber at Rocky Fork High School, and claims not to know any of the subscribers outside of any online conversations. Nevertheless, Jennifer has played an active role in the Muse-Connect “online community,” as she has more than 20 followers and several individuals have commented on her other works.

   On Sunday, January 27, 2009, Jennifer posted a new poem, “Not on My Fork,” to her Muse-Connect profile page. The poem, which could be viewed under the “public” default setting, reflected on the recent influx of Hispanic students to Rocky Fork High School. Stemming from the local debate over “room” in Rocky Fork’s classrooms, Jennifer’s poem criticized the school’s administration, and ostensibly advanced anti-Hispanic and anti-immigration themes.

   Like many of Jennifer’s poems, “Not on My Fork” alluded to details in her personal life without naming specific places or individuals. For example, in the text of the poem, Jennifer used the words ‘rocky’ and ‘fork,’ which admittedly were plays on the Rocky Fork High School name. Jennifer’s poem also depicted a “Principal” who used a “rubber stamp” for Hispanic students and who advanced through the system as a beneficiary of “affirmative action” policies. George Alva, who is of Hispanic descent, became the principal of Rocky Fork High School in August 2008, after the school’s former principal retired. Before relocating to Rocky Pines, Alva spent 15 years as an administrator in Miami public schools, where he was known for working extensively with minority and low-income students.

    The poem, presented in its entirety below, also contained several offensive slang terms and crude, hyperbolic language, which Jennifer used to describe the Hispanic population. For example, the poem refers to a cheerleader as an “illegal, fat alien whore.” This seemingly refers to Carmen Salas, the captain of the cheerleading team, and the only member of the team who is of Hispanic descent. Carmen and other students believed that the poem targeted her. In 1987, before Carmen was born, her parents immigrated to the United States from Mexico, and moved to Rocky Pines in 2006.

   Jennifer posted this poem without comment or further explanation. In its entirety, “Not on My Fork” reads as follows:

The floodwaters rise as the herds of brown churn,
There’s no air to breathe, and
There’s no room to learn—
There’s no space to speak the language we spoke,
As Aliens pour in,
The English words choke!
Oh, what a joke—you principle fools
The Principal sits on his ass as he rules.
His fat rubber stamp,
His lack of reaction—
They’re all the result of affirmative action!
He lets them all pass,
He churns them all out
And the brown, it keeps pouring from Mexico’s spout.
Meanwhile, I’m drowning—
I’m the Child Left Behind.
The classroom’s an ass room,
And crowds are not kind.
And even the cheerleading’s worse than before,
Led by the illegal, fat alien whore.
I’m so tired of treading tortillas and pork—
These waters are Rocky,
It’s not on my Fork!

   As of March 31, 2009, Jennifer’s “Not on My Fork” poem had only seven views, all from Muse-Connect subscribers, who are not thought to be associated with the school. Jennifer posted a new poem to her page on the evening of March 31. Titled “Sisterhood,” the new poem reflected on Jennifer’s relationship with her two best friends and classmates, Amelia Mason and Ren Helm, and made no allusions to the themes in her previous poem. Later that night, Jennifer sent an e-mail to Amelia and Ren from her Google e-mail (“g-mail”) account, attaching a link to the URL for her Muse-Connect page. Although Jennifer directed her friends to “check out the latest addition to [her] page,” the link also provided access to all of Jennifer’s poems, including “Not on My Fork” which was the second most recent entry on Jennifer’s page.

   Recognizing “Not on My Fork” as a racially offensive commentary on Rocky Fork High School, Jennifer’s friend Amelia immediately forwarded the link to seven additional classmates that night, pointing out the description of who she thought to be Carmen Salas. By the next morning, the “Not on My Fork” poem had 23 views and two comments. One anonymous, non-subscriber agreed that Carmen Salas should not attend the school, writing that “Mexican students always get a free pass.”

    Throughout the school day on April 1, both Jennifer and Carmen overheard small groups of students discussing Jennifer’s poem and inquiring into Carmen’s citizenship status. Although the school’s blocking software prohibits access to Muse-Connect and other social online forums through school computers, students could log on to the website using their personal mobile devices. The school has a rule that prohibits students from using cellular phones and other mobile devices on campus. Defendants admit they cannot know whether the students actually follow this rule. No students were written up for violating the rule that day.

   Jennifer testified that between classes, around 9:30 a.m., she heard a group of four students discussing whether Carmen was “an Illegal.” When the group saw Jennifer walk by, they asked her whether the line was true, to which Jennifer replied that she really did not know. At the 11:15 a.m. lunch service, Carmen walked to her car in the school parking lot and found that someone had printed the poem from Muse-Connect and placed it on her car windshield. Carmen does not know who the person was. Walking into the cafeteria, Carmen overheard another 11th-grade student asking two other students whether they had read the poem, but both students said they had not heard of it.

   Later in the school day, around 2:15 p.m., two students reported that they saw Carmen crying in the girls’ restroom. Carmen later told the guidance counselor, Ms. Nancy Connor, that she was “hurt” and “embarrassed” by what Jennifer had written in her poem. She handed the printed copy of the poem to Ms. Connor. Because Carmen’s last remaining class was a 45-minute study hall, Ms. Connor gave Carmen permission to leave school a half-hour early. Carmen also missed her daily, one-hour cheerleading practice later that night after telling her coach that she was “just not feeling well.”

    On the morning of Wednesday, April 2, Ms. Connor visited Principal George Alva in his office to explain her conversation with Carmen Salas. Bringing the poem to his attention and explaining its authorship, Ms. Connor expressed her concern about the poem’s effect on Rocky Fork’s Hispanic students. Taking the hard copy of the poem from Ms. Connor, Principal Alva said that he would “deal with the problem,” and thanked her for bringing the issue to his attention.

   Later that afternoon, Principal Alva called Plaintiff Jennifer McCord to his office. Explaining that he felt the poem to be “offensive” and “crude,” and that it might “create resentment by other students,” Principal Alva asked Jennifer to remove the poem from her Muse-Connect page. Under the School’s Code of Conduct, which prohibits students from engaging in “unreasonably disruptive behavior,” Alva suspended Jennifer for the next three days, and prohibited her from representing Rocky Fork High School in the upcoming Division I Regional Swim Meet, into which she had placed because of her excellent performance at the District Finals.

    On May 10, 2009, Plaintiff McCord filed a complaint in the United States District Court for the Southern District of Florida against the Rocky Fork Unified School District and Principal George Alva, in his official capacity, alleging a violation of her First Amendment rights under 42 U.S.C. § 1983.