High school students disciplined for critically publicizing classmate's anti-black post

|The Volokh Conspiracy |

[UPDATE, Nov. 15, 2016: The ACLU of Ohio reports that the school has reversed its decision.]
According to Fox 8 Cleveland (Melissa Reid), cleveland.com (Evan MacDonald) and Cleveland Scene (Eric Sandy), two Shaker Heights High School students were suspended by the school for publicizing a classmate's anti-black post. The classmate responded to the question "You don't think Black people having equal rights??" with "No because they don't work for it and as a culture they are scary, violent, rude and needy / They expect to be catered to."

The students disapproved, and distributed a screen grab on their own Snapchat, to illustrate "that this kind of racism still exists." And then the school disciplined the two students, for "disruptive behavior," apparently on the theory that publicizing the post "opened [the classmate] up to harassment," and that they "put a private message on a public forum." (We only have the students' accounts of this; Fox 8 Cleveland reported that the school district said it can't comment on student disciplinary matters, and an ACLU letter about the matter reports that the original post was "broadly posted." [UPDATE: I originally characterized the letter as saying that the original post was "public," but other reports claim it wasn't; I just talked to someone at the ACLU who says that she is confident that the post wasn't just a one-to-one message, but was posted in a place where a substantial group of readers could see it, though it may not have been outright "public." That doesn't affect my view of the matter, but I wanted to correct and clarify this.])

This, it seems to me, helps illustrate the need to limit schools' ability to discipline students for "disruptive" speech. Tinker v. Des Moines Indep. School Dist., which dealt with speech at school, did say that some such speech can be restricted if it materially risks substantially disrupting schoolwork. And I agree that even political speech off-campus can cause such disruption at school. But the Tinker substantial-disruption doctrine can't justify schools controlling students' speech 24/7, to the point that a student faces suspension (and, if that's allowed, then why not expulsion?) for engaging, off-campus, in political speech that classmates find offensive. It's one thing for schools to say "school is for learning, so don't say things at school that interfere with school"; it's another for schools to say "don't say anything anywhere that might interfere with school."

The school's view would make it risky for students to express any views that some might find highly offensive and might thus cause disruption—whether condemnations of blacks, of whites, of illegal aliens, of Muslims, of Trump supporters, of evangelical Christians, of gays, or of anyone who condemns the condemners (or supports them). Tinker held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." And though the court stated that, within the schoolhouse gates, some speech can be restricted in the name of preventing disruption, outside the schoolhouse gate student speech, especially political advocacy, has to be firmly protected.

I do see that, with today's media, publicizing a classmate's comments could lead to a huge backlash against the classmate—and perhaps even to some people physically attacking the classmate. But I don't think that fear of this can justify punishing students for accurately reporting their classmates' political sentiments, especially given that showing how the sentiments are indeed being expressed by a real classmate is itself part of the political message. (Some people condemning classmates that way might choose to blur out the criticized person's name, but especially given the frequency of hoaxes, including the name is often important to making the message credible.)

Naturally, I think the classmate shouldn't be disciplined for her speech, either. The Fox 8 article states,

[One of the suspended students] said she's disappointed the student who posted the racist rants was not disciplined.

She said free speech is one thing, but disrespecting someone's race is a problem.

The problem is thinking that just because some speech "is a problem" it isn't free speech any more.

Thanks to Prof. Gary Dyer for the pointer.

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