Restrictions on student expression are needed to prevent disruptions in the classroom and to protect the rights of others. But are schools and officials overreacting to some expressive student reports? The rights of students and their freedom of expression has been debated over a long period of time. Issues have risen on whether or not schools have the right to punish students who have posted racist or offensive social media posts on public apps such as Instagram or Snapchat, and how harsh the consequences are allowed to be under the First Amendment. Some argue that these punishments go against the First Amendment.
Others say that punishing some actions which promote unnecessary disruptions do not go against the First Amendment. One school plans to discipline a group of students who exchanged racial and sexual slurs in leaked private Snapchat messages have raised issues of digital privacy and questions about how much schools can regulate student social media use. But private schools have ample right to discipline students in such cases when student actions violate the school’s mission statement or code of conduct, said Claudia Daggett, president of the Independent Schools Association of the Central States. Kelli Hopkins, associate executive director of the Missouri School Boards Association, said in most cases the law does not allow administrators to punish students for off-campus social media activity.
But it is clear that if students use racial slurs or engage in other forms of discrimination on campus or in a way that interferes with the school’s educational environment, public schools can punish them, Hopkins said. That kind of protection is mandated by federal law. But if public school students use racial slurs off campus or on their own personal time, their school won’t be able to discipline them. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (1). How about wearing some offensive gear? Some students at an Indiana high school wore Confederate flags as capes to class last week. This has renewed a debate over the extent to which the speech of public school students is protected by the First Amendment. The principal of Bloomington High School North said the flag is too disruptive a symbol to have a place on campus.
The Confederate flag has become even more contentious after it was featured in photographs with the Charleston church shooter in 2015. As municipalities have voted whether to fly the flag, opponents say the saltire stands for lingering racism, pointing to its use by Southern governors during the civil rights era. But supporters say it’s more about pride for those whose ancestors fought for the Confederacy. One of the students going to the school, Tamara Brown, said that she was stopped by ‘multiple students wearing Confederate flags as hats and capes draped across their bodies…They yelled things such as, ‘If you want to start stuff, then we’ll start stuff too,’ and ‘The South will rise again.” While the high court protected students’ First Amendment rights in 1969, it indicated there are exceptions with schools that banned offensive symbols for safety reasons. A costume involving President Obama, Hillary Clinton, Donald Trump, and a noose worn by two attendees at a University of Wisconsin football game has reignited the debate on the role universities play in protecting free speech and curbing hateful words. Costumes have a tendency to usher in instances of cultural appropriation and stereotypes some find offensive, especially on college campuses where student bodies are increasingly diverse.
Some schools have encouraged students to make costume choices that don’t emulate specific racial groups or other minorities. Other schools have instituted outright bans on certain costume choices they say create hostility or danger on campus. But hate speech doesn’t necessarily fall outside of the realm of First Amendment protections. Words that provoke threats and fighting, two defined legal categories that don’t receive protection, sometimes overlap with speech that is hateful towards a specific group. While some neutral bans, like those against nudity or realistic-looking weapons, may pass a First Amendment test, institutions and officials seeking to bar costumes to make sure no one is made uncomfortable don’t have a strong case for censorship.