The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Students Don't "Shed Their … Freedom of Speech … at the Schoolhouse Gate" …
... they apparently shed it well before the schoolhouse gate.
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.