A federal appeals court is expected to rule in the coming weeks on an appeal from the Cape Elizabeth School District seeking to overturn a lower court decision to delay the suspension of a student for notes she posted about sexual assault.

The district has argued school administrators were within their rights to issue sophomore Aela Mansmann a three-day suspension after she anonymously posted sticky notes about a rapist in a girl’s bathroom at Cape Elizabeth High School last September.

“It is the functional equivalent of pulling the fire alarm,” said Melissa Hewey, an attorney for the school district, during oral arguments before a panel of judges in the First Circuit Court of Appeals Thursday. “When the fire alarm is pulled that creates a disruption and an obligation to investigate.”

She said the notes were alarmist and the school district reasonably concluded that, although they did not specifically name anyone, the notes constituted bullying against a specific student and a disruption to the school day.

But an attorney for Mansmann and her mother, Shael Norris, told the appeals court Thursday that they should uphold an October order from U.S. District Court in Maine that granted Mansmann relief from the suspension based on the likelihood of success in her free speech case against the district. The original case is on hold pending the outcome of the appeal.

Filed by Mansmann and her mother last fall, the lawsuit alleges that school administrators violated her free speech rights when they suspended her. Mansmann, an advocate against sexual assault, had along with two other girls posted sticky notes in the girls’ bathroom that read, “There’s a rapist in the school and you know who it is” to draw attention to the issue.

School officials at the time said that they were investigating the allegations in the note, but were confident the school was safe and that there was not a rapist in the building.

Mansmann also spoke with the Press Herald about student concerns regarding the district’s response to sexual assault allegations. The same day a story was published about those concerns and the notes in the school bathrooms, Mansmann was issued a three-day suspension.

Emma Bond, an attorney for the American Civil Liberties Union of Maine, which is representing Norris and Mansmann, argued Thursday the notes constituted political speech on a pervasive issue impacting young people – sexual assault – and should be protected under the First Amendment.

She said the district court properly applied a standard previously established under a landmark Supreme Court case, Tinker v. Des Moines Independent School District, which protects student free speech except in cases of substantial disruption or if the speech invades the rights of another.

There is no timeline for when the panel of three judges might issue their decision on the appeal. Their questions Thursday focused on what constitutes a disruption to the school day, including whether the note itself or the subsequent investigation constituted a disruption, and whether the notes were an instance of bullying.

“The school system has to do an investigation under Title IX of any complaint,” said Judge Sandra Lynch in questioning Hewey, the school district’s attorney. “Are you seriously suggesting that when the school system has such an obligation that carrying out the Title IX investigation counts as disruption of a school?”

Hewey said she was not suggesting that a Title IX investigation was a disruption, but rather that the way Mansmann made her complaint was disruptive. She also said that rather than trying to determine whether or not the note was a disruption, the court should ask whether a school administrator could reasonably interpret it as such.

Justice David Barron also asked Hewey how the court could be expected to evaluate the appeal on the basis of a disruption when the reason cited for the suspension was that the note constituted bullying. He asked how the court could make a decision if it is unclear whether the notes constituted bullying or not.

“The Supreme Court has made clear we need to give deference to the discretion of school administrators,” Hewey said. “I think (the student) has the burden to show this was an abuse of their discretion in deciding what they decided.”

She said that rather than Tinker, the court should look to subsequent cases that have narrowed the free speech rights of students, including Morse v. Frederick, which addressed the rights of students to advocate for illegal drug use in schools.

“It’s certainly true that if we can allow schools to control language that promotes drug use we can also and we must allow schools to control language that bullies students,” Hewey said.

In her responses to the justices, Bond, the ALCU attorney, said the school department is trying to set a new legal standard by saying that because the note was “alarming” it justified punishment.

“To say a note is alarming in the school’s view is not a legal standard,” Bond said. “When you look to the facts of what the court found, this was a note about sexual assault and critiquing the school’s handling of it. The school can see this was well-meaning and made with good intentions. The district court found it was not frivolous. Certainly the problem of sexual assault in schools is an alarming issue. It’s also a common issue.”

In considering the case the justices will also weigh a handful of amicus briefs, including one filed by the Gender Violence Legal Policy Workshop at Harvard Law School in support of Mansmann. The brief says the school district’s handling of the case is indicative of “serious Title IX compliance problems,” though the district refuted that in its own filing, saying Harvard mischaracterized their response.

Norris, in a brief interview Thursday, said there continues to be a pervasiveness of silencing survivors of sexual assault and those who speak out in the district.

“I continue to be shocked,” Norris said. “I’m shocked the district decided to take up this charge. I’m shocked they continue to move ahead with ongoing appeals because as a taxpayer I think it’s a waste of their money, especially as we move through a COVID budget crisis. I’m shocked they continue to spend money on this.”

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