A federal judge will decide by week’s end whether the Cape Elizabeth school district violated a high school student’s free speech rights when it suspended her for posting a sticky note in a bathroom that read: “there’s a rapist in the school, and you know who it is.”

Cape Elizabeth High School sophomore Aela Mansmann speaks to students who walked out of school Oct. 7 to protest the suspension of Mansmann and two other students who complained about how the school handled sexual assault allegations. Gregory Rec/Staff Photographer

U.S. District Court Judge Lance Walker heard oral arguments Monday on a temporary restraining order filed by the American Civil Liberties Union of Maine, which is representing the student, 15-year-old Aela Mansmann.

ACLU attorney Emma Bond told Walker that the sticky note was clearly protected speech, both under the First Amendment and under Title IX, which is part of a federal law that prevents gender discrimination and sexual violence in education.

Furthermore, Bond said, since Mansmann did not identify anyone in her note, she couldn’t have engaged in bullying, which was the reason the school suspended her.

Students like Mansmann “need to speak, even in ways that adults don’t like,” Bond told Walker.

Melissa Hewey, representing the school district, argued that Mansmann’s speech was not political in nature but rather directed at a specific person. She also said it should not be protected because it created a disruption in the school.

“Students have rights, but not if they are materially disruptive and affect the rights of other (students),” Hewey said.

Mansmann, who has been speaking out about sexual assault and rape for many months, was suspended for three days after she acknowledged to school officials that she put the sticky note in the bathroom. The student appealed the suspension to Cape Elizabeth Superintendent Donna Wolfrom, who denied the appeal. The school has defended its decision to suspend Mansmann, as well as two other students who participated.

The ACLU of Maine last week filed a lawsuit seeking to block the school from suspending Mansmann.

The allegations have generated significant discussion in the community, with many defending Mansmann for speaking out, and about 40-50 students staging a walkout two weeks ago. Her parents attended Monday’s oral arguments but declined to speak with the media.

Mansmann has not started serving her suspension while the case is pending. The two other students who also were suspended for leaving bathroom notes have not spoken publicly about their cases.

The issue of how Cape Elizabeth has handled sexual assault accusations boiled over in June when three students, including Mansmann, brought up the topic at a school board meeting. The students said that the school hasn’t done enough.

But school officials pointed out that they revamped school policies surrounding sexual harassment and assault over the summer, and have devoted more resources to investigating complaints.

Walker was confirmed to the federal judiciary in October 2018 and is a former Maine Superior Court judge. His notable cases include a ruling in favor of Maine’s new ranked-choice voting system. Walker rejected a request by former U.S. Rep. Bruce Poliquin, R-2nd District, to have another election after Poliquin was unseated by Democrat Jared Golden in November 2018.

Walker questioned both Bond and Hewey during their arguments on Monday, seeming to focus on two points: Whether Mansmann’s note targeted a specific student, and whether there were any time, place or manner considerations that could have made it legal for the school to restrict her right to free speech.

The question of whether a public school can restrict a student’s First Amendment rights stems from a 1969 Supreme Court case over students who wore black armbands to school to protest the Vietnam War. In Tinker v. Des Moines, the court found that the First Amendment applied to public schools, and school officials could not censor student speech unless it disrupted the educational process.

Cape Elizabeth school officials have contended that Mansmann was bullying a specific student with the bathroom note. An Oct. 9 letter to the Cape Elizabeth community from high school principal Jeff Shedd said the student “who was the target of the sticky notes stayed away from school – he missed a total of eight days of school. He felt unsafe.”

Hewey argued that Mansmann’s speech was not political because it was too specific. Walker, however, pointed out that Mansmann has a history of speaking up about this topic.

“Doesn’t context matter?” he asked.

Hewey also said that if Mansmann wanted to be an advocate, she should have done so in an appropriate manner.

“You can’t do it in a way that’s going to provoke fear,” she said.

Bond said it’s not fair to decide after the fact what’s appropriate and what’s not.

Bond said sexual assault is something that should be talked about more frequently, not less. She said students like Mansmann shouldn’t be punished for not addressing concerns in the right way because it sends a message to others that speaking up has consequences.

“Silence only makes the problem worse,” Bond said.

Cape Elizabeth school officials have previously told the Press Herald that confidentiality reasons keep them from discussing individual cases, but overall the district has investigated 10 complaints of sexual harassment since 2018. The investigations include one case of sexual assault and one of unwanted sexual touching, school officials have said. The other eight sexual harassment cases did not involve unwanted touching or assault and were for gestures, photos or verbal harassment.