Free Speech

Students Don't "Shed Their … Freedom of Speech … at the Schoolhouse Gate" …

... they apparently shed it well before the schoolhouse gate.

|The Volokh Conspiracy |

The Atlanta Journal Constitution (Shaddi Abusaid) reports,

Two Carrollton High School seniors were expelled Friday and won't be allowed to graduate after a racist video they posted online went viral.

In a statement, Carrollton City Schools Superintendent Mark Albertus said the students' behavior was unacceptable and "not representative of the district's respect for all people."

The racist behavior observed in the video easily violates this standard," he said. "They are no longer students at Carrollton High School."

The video, initially posted to the social media platform TikTok on Thursday, went viral after showing the two teenagers using the n-word and making disparaging remarks about black people.

The 50-second clip was shared so many times that "Carrollton" was trending on Twitter by Friday morning.

Filmed in a bathroom, the students—one boy and one girl—mimic a cooking show as they pour cups of water into the sink.

"First we have 'black,'" the girl can be heard saying as the boy grabs one cup and pours it in. "Next we have 'don't have a dad.'" …

The video sounds appalling, but fully protected by the First Amendment. And while the government has the power to restrict various kinds of speech (disruptive speech, vulgar speech, nonpolitical pro-drug-use speech) at school or in school-sponsored events, I think its broad powers can't be applied 24/7 to all speech that students engage in everywhere (including speech that appears not to be about any other student at the school, involve threats of violence, and the like). And even if off-campus speech can be restricted on the grounds that it causes disruptive effects on campus (e.g., fights when the students come to school)—a matter on which lower courts are unsettled—David Bernstein (InstaPundit) points out that "the schools are closed for the academic year due to Covid-19, and the students are high school seniors."

The title of the post comes from a quote from Tinker v. Des Moines Independent School District (1969), where the Court wrote,

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

According to the school district, though, even outside "the school environment" with its "special characteristics," nowhere near the "schoolhouse gate," certain kinds of viewpoints can be punished with expulsion and apparently denial of a diploma.

Thanks to Hans Bader for the pointer.

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  1. Well, at least they won’t need a degree; they can retire off the proceeds of the lawsuit, even after paying the lawyers outrageuos fees.

    1. Let’s assume for sake of argument that they have a valid Section 1983 suit. You think they are going to get rich of a damaged award by a jury? If they prevail at trial, their lawyers will get their fees, but I have a hard time seeing a jury awarding a large sum to the students, much less enough to retire on. I could see an award of nominal damages ($1, for example) if the jury is convinced that the 1A was violated even though the speech was appalling. That may get the lawyers paid, but won’t do much for the plaintiffs. At best (IMO) they can hope for a finding of a 1A violation and getting their diplomas. Of course, their names will now be linked forever online with the vile speech, so for a while they probably will need to own their own business, as I’m not sure too many employers will be keen to hire them (diploma or not).

      Lastly, I don’t think a 1A violation funding is guaranteed, although I think their likely was such a violation.

      1. Sorry for the typos. No edit function and too lazy to proofread. But man, that’s bad even by my standards.

      2. I have met very few people, lawyers and plaintiffs, actually get rich off of a section 1983 judgement. When it comes to plaintiff’s judges and juries don’t usually hand out huge awards (even for the few cases that qualify for punitive damages) in these cases. Lawyers usually end up taking far less then the market value of their hourly rate once all time time and effort is added up, reduced during fee petition litigation, and it is all said and done. This doesn’t even factor in fees usually aren’t paid out until years after the case is filled and the firm usually bears many litigation costs until reimbursed with the fee petition award.

      3. Oh I think there could be some creative (and not unreasonable) arguments for real damages. What’s the value of a high school education? At a minimum, start with the cost of a year of private schooling. Next step, the cost of a year of public education as an alternative measure (probably more expensive except for extremely prestigious private schools, which, I will wildly speculate, these kids couldn’t get into). Or take it up another step, compare the lifetime earning potential of somebody with a high school diploma vs. one without. The first two scenarios seem likely, and the second, while not likely, is plausible.

        Not enough to retire on, but you could get some real damages, in the tens of thousands.

        1. Tens of thousands is paying for an undergraduate level of money. Hardly racking in the dough. Again, section 1983 isn’t designed to get people rich. It is designed to make them whole, usually through equitable relief. I read a good law review articles that discussed the few 1983 cases that resulted in large damages (above a million) and those were outliers. Punitive damages (which is what pays out the big dollars) are hard to prove and get in 1983 cases. Judges tend not to want to strap local governments which huge awards and juries usually feel the same way. If you look at recorded cases there are instances of some fee petitions going 1 million plus but breaking those down you will see that those cases usually went up the appellate chain at least once, involved fact intense trials, and took years to come to an end. The rate per hour is usually really low in the end.

  2. I’m sympathetic to the view that students *do* shed their rights at the schoolhouse gate – or, rather, that schools are entitled to be selective about their students.

    Of course, by their aspiration to run most of the schools in the country, governments are claiming a great deal of power over the upbringing of children, and perhaps the courts should take this into account in checking government pretensions.

    To the extent a school is an arm of the state, professing to set norms on how our younger citizens will be treated, there’s case for limiting the schools’ actions by the bill of rights.

    In a private school, of course, the school could (consistently with its own self-written rules) punish students who cause embarrassment to the school or themselves.

    In a home school, to the extent permitted by government restrictions on parental power, the parents/teachers could give their pupils a good spanking.

    1. What makes you figure the parents disapprove this bigotry?

      1. Who on earth knows, I don’t have a Helm of Telepathy like you do, enabling me to read everyone’s mind.

    2. I’m sympathetic to the view that students *do* shed their rights at the schoolhouse gate – or, rather, that schools are entitled to be selective about their students.

      Even if students do shed their constitutional rights at the door, does the fact that this occurred outside the school matter?

      If you lose rights when passing through the schoolhouse door, surely you retain those rights when outside?

  3. Yep, seems wrong on both law and policy.

  4. One can draw a clear distinction between this case and Tinker.

    1. Please draw it for us.

      1. The Tinker students weren’t fomenting hatred (and, given the history, violence) against their fellow (black) students.

        Yes, I have to explain it. Every day I’m hit by the fact that this is an all white blog with all white commenters.

        1. “Every day I’m hit by the fact that this is an all white blog with all white commenters.”

          “Fomenting hatred” is protected by the constitution, as anyone with even a rudimentary understanding of the First Amendment should know, including non-white commenters. Come to think of it, complaining that this blog “is an all white blog with all white commenters” constitutes “formenting hatred” in my book. But not to worry captcrisis, your view, bigoted and ignorant as it is, is also protected speech.

        2. “The Tinker students weren’t fomenting hatred:

          Are you insane?
          Des Monies was a military town with lots of students whose parents were over in Vietnam . How do you think felt???

          1. “Des Monies(sic) was a military town”

            As an Army brat, that seems like rather a stretch. It’s not exactly Fayetteville.

            And I don’t think opposing the Vietnam War, even in Fayetteville, amounts to ‘fomenting hatred’; it is a garden variety political disagreement. If I say ‘balance the budget’ or ‘legalize dope’ I’m not ‘fomenting hatred’ against bureaucrats or narcotics officers.

          2. It would be interesting to see how that conversation would go, between student #1 wearing the anti war armband and student #2 whose dad was serving in Vietnam.

            S #1 I don’t want your dad getting killed in a stupid war!
            S #2 Well I do!

            Student wearing antiwar

            1. No, Student #2 punches Student #1. This reportedly was what the school district was worried about, very much worried about, and I’ve seen estimates that 25% of the students had a parent or older brother in the war. The US Army had a fort there at the time (now closed), and there was an active ANG base at the nearby airport.

              Now while we fought it stupidly, it was NOT a stupid war. Not unless you would prefer living under Soviet rule, and Vietnam stopped things from happening in places like The Philippines and even Japan. Yes, the domino theory, and it was valid.

              Remember too that while Tinker was decided in 1969, the armbands were worn in 1965. Very different country in 1965 — when construction workers (Korean War vets) were routinely beating up war protests, who then were few in number. (Look it up.)

              1. It certainly was a stupid war (and I’m not going to get into your John Birch Society analysis). And it would have been stupid for student #2 to punch student #1. As it would even for our non-stupid wars.

              2. Vietnam stopped things from happening in places like The Philippines and even Japan. Yes, the domino theory, and it was valid.

                We lost in Vietnam. We lost in a way that made it clear we weren’t going to get involved in another such proxy war like that for a while. I don’t see how your counterfactual speculation makes any sense. Especially given how most historians and indeed military analysis DON’T think the domino theory is valid, at least not on it’s own.

                1. We won IN VIETNAM — Tet was a major *loss* for the NVA and they almost surrendered — but realized that if they could somehow hold on for another 6 months, the subversives in American academia would undermine us at home.

                  1. The subversives weren’t in American academia, they were in the DNC.

                    1. There’s a distinction?

                  2. Hoo-boy.

                    “Tet was a major *loss* for the NVA”

                    That is completely true.

                    “they almost surrendered”

                    Not remotely true. The bottom line in VN was that North Vietnam was willing to pay a higher cost to take South Vietnam than we were willing to pay to stop them. The military casualty ratio was something like 10:1 in our favor throughout the conflict … and they found that acceptable. The American population did not find our end of that exchange acceptable on an indefinite basis.

                    1. ” The bottom line in VN was that North Vietnam was willing to pay a higher cost to take South Vietnam than we were willing to pay to stop them. The military casualty ratio was something like 10:1 in our favor throughout the conflict … and they found that acceptable. The American population did not find our end of that exchange acceptable on an indefinite basis.”

                      All true, except that their resources were not unlimited.

                      Their generals are now old and writing their memoirs — *they* are saying that after Tet, they were about to give up, except they were told that if they could only hold on a little bit longer, the Americans would give up.

                      And Saigon fell in 1975 because Congress wouldn’t give Ford a small amount of money.

                    2. “Their generals are now old and writing their memoirs — *they* are saying that after Tet, they were about to give up,”

                      Fascinating. Can you share the titles?

                      “…except they were told that if they could only hold on a little bit longer, the Americans would give up.”

                      Right. As in, they were willing to pay a higher price than we were.

                      No one doubts America could have won the war if we were willing to pay any price – we could have nuked them, or accepted the risk of a global war and invaded North Vietnam, or raised a WWII scale army and fought for another 50 years, etc, etc, etc. It wasn’t worth that price to us.

                  3. Even taking your Dolchstoßlegende as true, the point is that it showed America was not going to come to do that again. Your ‘domino theory was true’ makes no sense even by your own terms.

                    1. “Your ‘domino theory was true’ makes no sense”

                      Vietnam was the last true “domino” — starting with WWII and the Iron Curtain, and extending through Greece, China, South Korea, Cuba (etc.). there was an ongoing Soviet effort of expansion that ended with Vietnam. There was Cuban subversion, but not the mass carnage (high expense) efforts of years past.
                      (NB: Afghanistan & Chechnya were different because they involved Islam and actual Soviet security.)

                    2. Your causal case leaves a lot to be desired.

                    3. “Vietnam was the last true “domino””

                      Angola, Eritrea, Sarawak, Malaysia, Philippines, Ethiopia, Mozambique, Nepal, Darfur, …

        3. Every day I’m hit by the fact that this is an all white blog with all white commenters.

          I guess this means I have to leave.

    2. I agree: since the conduct in Tinker 1. Took place at the school and 2. Wasn’t actually speech, the school had a much stronger argument that its discipline was appropriate than the school does in this case.

  5. Expelling these students seems wrong.

    Rising to the defense of every racist who gets caught, while ignoring free speech issues involving Falwell Jr. or President Trump’s campaign, seems natural for a conservative blog.

    1. It really irks you that these kids aren’t being hung or thrown in prison for their crimes, doesn’t it?

      1. Sam,
        Um, did you read the FIRST FIVE WORDS of his post? Since he wrote that he thinks the school’s decision to expel was wrong, I’m not sure why you jump to the assumption that Rev supports murdering or imprisoning these two racist teenagers.

        Of course they should be allowed to graduate. I don’t understand *any* possible school justification for this. Even without Covid-19, I would think that, as worst, a school could tell these teens, “You can’t come back to school, as we have a well-founded fear of racial incidents if you’re present. But you can finish up the semester doing home-schooling, and you’ll get your diploma.”

        My guess is that the school will quickly settle this aspect of the case. On the other hand, I hope that the school adds to the students’ transcripts a brief summary of what the students did outside of the school . . . just as I hope that high schools include brief summaries of outside activities for students who do volunteer work at veterans’ hospitals, animal shelters, old age homes, etc. (Giving back to the community seems quite relevant to many universities’ values. And making horrifying public mockery of other races seems similarly relevant to universities.”)

        1. I actually did miss his first five words. Its very un-KKKirkland like to make such a statement.

          1. I’ll say it for the hundredth time:

            Bigots have rights, too.

            1. Is that your hashtag?

            2. It’s not about high value in the blabber vomited forth from every cretin’s mouth. It’s about denying government one of the primary tools of tyranny: censorship.

        2. Because Blacklisting people works so well.

          Beware the backlash….

        3. 811….I was nodding in agreement until the last paragraph. I don’t think there should be anything put into the official school record. That is one step too far. What these students spoke was horrifying and disgusting…but I don’t think it should be life-altering in a manner that will destroy their ability to thrive in society.

          No matter what, that video is out there, and will follow them for all time.

        4. Why should a school add anything to the Transcript? How about, just showing the Grades earned rather than playing ‘gotcha’. Any other tid-bits you want added to students ‘Permanent Record’? LOL

    2. Who, if not a law professor with a particular interest in the First Amendment, would you suggest “rise to the defense” of someone whose First Amendment rights have been violated? Anyway, I didn’t see the post as volunteering to actually help the aggrieved students with pursuing their rights — just an informed opinion that the school district is violating the students’ First Amendment rights.

      Remember, it’s usually only objectionable (to someone) speech that requires vigorous protection of the Free Speech right enumerated in the First Amendment.

  6. Professor Volokh, I do agree that under these circumstances, what school authorities did was wrong.

    Would you take the same position if school were in session?

    More generally, does it make any difference that standards and legal reasoning applied to publications when editing was customary, are now being applied alike to publications which never get edited? Do you suppose society will be willing to accommodate the unlimited damage which unedited publishing can deliver? Do you see any potential threat to speech freedom if society decides it does not want to accommodate unedited publishing?

    1. Another example of why we need to repeal section 230 of the Communications Decency Act.

      1. We should lock Stewart Baker and Lathrop in a room and throw out random scenarios and see which one of them can be the first to argue that the random scenario justifies abolishing (a) § 230; or (b) privacy.

        1. My two concluding questions, Nieporent. What are your answers?

          1. My answer is that I reject each and every one of your premises.

  7. Stephanie Freeman and Jeffrey Hume seem to have a promising future in Republican politics, on AM radio, and/or with Fox News.

    1. Be careful what you ask for.

      Before wondering why some of the Young Republicans are so damn ruthless (and they are), think about the environment they had to endure to get where they are. And be careful what you ask for…

      1. Dr. Ed, I suppose if they are Young Republicans, they had to endure prosperous childhoods in country club suburbs.

        1. The “Country Club Suburbs” are far more likely to be Progressive Leftists today.

      2. “Before wondering why some of the Young Republicans are so damn ruthless (and they are), think about the environment they had to endure to get where they are.”

        During the ‘good old days’ of my youth, the racism (and misogyny, and gay-bashing, and Jew-hating, and . . . well, there wasn’t much Muslim-hating because few of the knuckle-draggers were aware Islam existed) was common, open, and casual. Bigots wanted everyone to know that they were bigots, and that their way of thinking would control. Society tolerated plenty of abuse of blacks, women, Jews, gays, and others.

        Thanks to American progress, today’s bigots are on the defensive. They do not wish to be known as bigots, at least not publicly. They hide behind euphemisms such as “traditional values,” “conservative values,” “heartland,” and “color-blind.” They can’t abuse gays, blacks, women, Jews, Muslims, agnostics, atheists, and others nearly as much as they once did or would like to.

        I suppose bottling up all of that backwardness and bigotry — being able to express genuine opinions solely in safe spaces such as private homes, militia gatherings, and Republican Committee meetings — would constitute psychological hardship for the fledgling bigots and aspiring clingers of the Young Republicans.

      3. Yeah, this kind of racist trash is okay because liberals are mean.

    2. Sounds more like LBJ supporters.

      1. Dude…it appears your clock stopped like 55 years ago.

  8. The right half of the court, in “bong hits”, really fucked this issue up. There is absolutely no principled reason that schools should be able to punish students for saying, “bong hits 4 Jesus” but not for saying bad things about black people. they should overturn bong hits. And SCV.

    1. I agree with you that the Court in Morse v. Frederick, the Bong Hits 4 Jesus case. But for all the flaws of that opinion, it stressed that it applied only to speech at school or “school-sanctioned and school-supervised event[s].” See also Morse‘s discussion of Fraser, the vulgarity case:

      Fraser‘s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. See Cohen v. California (1971). In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker.

      1. I agree that my rants have limited applicability to this particular case due the fact that the speech did not occur at school, and school had indeed been canceled for the rest of the semester.

        But to the extent that the argument is that the speech here is protected under Morse because it didn’t promote drug use, this is of course technically correct. I just wanted to point out that Morse creates a distinction between speech promoting drug use and racist speech that we shouldn’t expect people to accept. And this is probably true with respect to vulgar speech as well.

        1. . I just wanted to point out that Morse creates a distinction between speech promoting drug use and racist speech that we shouldn’t expect people to accept

          To quibble/clarify, Morse turned on speech promoting illegal drug use. Alito’s concurring opinion (joined by Kennedy) made clear that they viewed the advocacy of drug legalization differently than the advocacy of drug use itself.

      2. I look at this the flip way — if the school is going to exercise en loco parentis (which they clearly are here) then can they be liable for permitting the student to be injured due to their negligence.

        If you let kids run in the hallway and one slides through a window and gets hurt, you’re gonna get sued for not properly supervising them. Hence why wouldn’t that apply here? If they are alleging this is related to a school-related activity, then the school wasn’t properly supervising them and they were injured as a result.

  9. Once the court undermines the principle, you can’t rely on the principle.

    After “bong hits,” students do indeed shed their freedom of speech at the school house gate. The only “bong hits 4 jesus,” is unprotected, but “black people don’t have dads” is that the court arbitrarily chose to punish the first message but not the second. And we shouldn’t expect black people to put up with that.

    The administrators in Atlanta should be able to do exactly what the administrators in Alaska did, that is, punish the speech and go to court and ask for a sui generis exception. But they shouldn’t get it, the court should overrule its holdings allowing the punishment of pro-drug, and vulgar speech.

    1. This conduct wasnt on campus or at a school related event. Why would a school administrator have control over what a child says when they arent anywhere near a school or school event?

      1. I agree with that part.

      2. Because school officials can do whatever they want, knowing that at worst they’ll be overridden by a court someday. They know they will never have to face any consequences for violating students’ constitutional rights.

        1. Yet.

          The fiscal shakeout of the Wuhan shutdown is yet to be resolved.
          Methinks budgets are gonna get cut.

    2. And we shouldn’t expect black people to put up with that.

      Why not? How, exactly, is your sentence different from those used to justify the Klan?

  10. The school is withholding something of substantial value, diploma and acknowledgement of academic achievement (assuming these knuckleheads have passed enough classes) . To do so, there had better be an existing policy in the student handbook that is sufficiently specific that the students were reasonably on notice that web postings from their home bathroom would be grounds for dismissal.
    Also, might there be something in state law or constitution about a free public education. If such a mandate exists, there would need to be defined circumstances under which such mandated education could be withheld.
    That is, the solution might be more local than reaching for the US constitution.

    1. Right here in the Georgia constitution. “
      ARTICLE VIII. EDUCATION
      SECTION I. PUBLIC EDUCATION
      Paragraph I. Public education; free public education prior to college or postsecondary level; support by taxation. The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation”
      http://www.senate.ga.gov/Documents/gaconstitution.pdf

      1. Hmmmm….
        _Draper v Atlanta Independent School District_ is a classic SPED case — I wonder if any of it would apply here.
        https://www.wrightslaw.com/law/caselaw/07/GA.jdraper.atlanta.htm

    2. You apparently don’t know much about lynch mobs if you’re appealing to such antiquated notions as due process. We’re burning witches over here, we don’t have time to see if they weigh more than a duck.

      1. Now that’s funny right there… Well played!

  11. Why’s it appalling? Black kids sometimes ask why white siblings have the same last name.

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