Cape Elizabeth agrees to clear record of student suspended for posting note about rape

The Cape Elizabeth School Department has agreed to remove any record of a suspension imposed on a student who posted a note in a girls’ bathroom saying there was a rapist in the high school.

That settlement will end a lawsuit that began nearly a year ago when the American Civil Liberties Union of Maine filed the free speech complaint on behalf of Aela Mansmann and her mother. The parties have asked the court to approve the agreement, a necessary step because the case involves a minor.

Judges have twice sided with Mansmann, once at the federal court in Portland and again at the appeals court in Boston. On both occasions, they ruled Mansmann was likely to succeed in her lawsuit and blocked the school department from enforcing her suspension. The case had returned to the lower court when the parties reached the settlement agreement.

A spokesperson for the ACLU of Maine said the organization could not say more about the agreement than what was included in the motion. The attorney on the case also said it would not be possible to speak with the plaintiffs Thursday.

When the appeals court decided in Mansmann’s favor in August, she called that moment “a huge win.”

“This is a huge win for survivors, for survivor advocates, for everyone,” Mansmann, 16, said. “This case is just an example of what happens all over the country, and I really think that students, but also school administrators, have an opportunity to learn from this.”

Attorney Melissa Hewey, who represented the school department, said Cape Elizabeth pursued the case to affirm its ability to restrict student speech that results in bullying. The appeals court did not find that the school proved Mansmann was targeting another student with her note, which was the justification for her suspension, but Hewey said their decision still protected the school’s discretion related to bullying.

“That’s a legal principal we set out to establish and we did establish,” she said.

The lawsuit never requested financial or punitive damages, and the settlement agreement described in the motion does not include any payments.

It is not clear what nearly a year of litigation has cost the school department. Hewey said Thursday that she is paid through the department’s insurance and did not know the total of the legal fees so far. An administrative assistant said Superintendent Donna Wolfram was out Thursday.

Mansmann, who was a sophomore at Cape Elizabeth High School last year, is an advocate against sexual assault. Last September, she posted a sticky note in a bathroom that read, “There’s a rapist in the school and you know who it is.” Two other girls posted similar notes.

School officials said at the time that they were investigating the allegations in the note. They also said the school was safe and there was no rapist in the building.

Mansmann spoke with the Portland Press Herald about student concerns over the district’s response to sexual assault allegations. The same day the newspaper published a story about those concerns and the notes in the bathrooms, the school told Mansmann she would be suspended for three days for bullying.

She appealed the suspension, saying that her note referred to the school department in general and not a specific student. About 50 students staged a walkout to support her and the other two girls who were disciplined. The ACLU of Maine then filed the lawsuit on behalf of Mansmann and her mother in the U.S. District Court of Maine.

The complaint alleges school officials violated the student’s First Amendment rights and her protection from retaliation under Title IX, which is part of a federal law that prevents gender discrimination and sexual violence in education. The ACLU also filed a separate motion for a preliminary injunction, asking the district court to stop the suspension from taking effect while the case is litigated.

District Judge Lance walker granted that motion last October.

“Something more is necessary to justify punishment,” Walker wrote in his ruling. “If school administrators receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us?”

The Cape Elizabeth School Department appealed that decision to the 1st U.S. Circuit Court of Appeals in Boston. A panel of judges heard oral arguments in June. They also considered amicus briefs in support of Mansmann, including one filed by the Gender Violence Legal Policy Workshop at Harvard Law School. That brief says the school district’s handling of the case is indicative of “serious Title IX compliance problems.” The district rebutted that in its filing, saying Harvard mischaracterized the district’s response.

The appeals judges upheld Walker’s ruling in August. In the decision, Circuit Judge Sandra Lynch wrote that bullying is a serious issue, but the school district failed to prove any causal link between Mansmann’s note and the bullying of a specific student. The judges agreed that the facts in the case supported Mansmann’s argument that her note was a general statement speaking out against her school’s handling of sexual assault allegations.

“Indeed, a school cannot suppress speech simply because it is unpopular with or critical of the school administrators,” Lynch wrote.

Once the court approves the settlement agreement, the motion says the school department will expunge the suspension from Mansmann’s record within 30 days. Then the case will be formally dismissed.