The Volokh Conspiracy

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Free Speech

High School Student "Says Teacher Threatened To Kick Him Out Of Virtual Class Over Trump Flag"


CBS 13 (Laura Haefeli) reported last week (including video of part of the incident that had been recorded by another student):

"You can sit up, remove the flag, or reposition your camera within the next 15 seconds or I'm kicking you out of class," the teacher said during their virtual class.

[The student's mother, Tiffany,] says the teacher then began to count and did not make it to 10 before Tiffany's son waved goodbye and exited the virtual classroom….

The teacher apparently then apologized, but the school board has declined to explain what the rules are:

Tiffany and her son … asked [at last Monday evening's school board meeting] that the board clarify the code of conduct for virtual learning.

"And he flat out told me no. We've just not been given any guidance," Tiffany said.

The Colusa County Code of Conduct includes a dress code that bans clothes with alcohol or drug symbols, sexual messages, profanity, or clothing that degrades any race, but nowhere in the 38-page document does it mention politics, elections, or campaigning….

CBS13 did reach out to the superintendent as well as the principal and vice principal of Colusa High School, but we have not yet heard back.

ABC-10 (Giacomo Luca) adds:

When requesting a comment, a Colusa High School employee referred ABC10 to the code of conduct. However, requests for comment were not immediately returned from Colusa High School, the Colusa Unified School District (Colusa USD), or the Colusa County Office of Education.

"The Governing Board believes that free inquiry and exchange of ideas are essential parts of a democratic education," the Colusa Unified School District student handbook writes regarding free speech. "The Board respects students' rights to express ideas and opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular." …

The school policies generally allow students the right to free speech which includes the wearing of buttons, badgers, and other insignia. The policy bans the use of fighting words and any "expressions" that are obscene, libelous, or slanderous.

It's pretty clear that a student's having a political message as a background in one's Zoom, just like wearing a T-shirt or an armband, is constitutionally protected. The government may sometimes restrict such speech, if it's likely to cause a serious disruption (such as fights); but that's not likely to be applicable here, especially as to distance learning.

And while of course political messages may be distracting, or could lead to in-class arguments that the teacher might need to restrain, that would have been equally true of black armbands to protest the Vietnam War—yet the Court found that such "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression":

Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

I called the high school, got referred to the superintendent's office, and then left a voice-mail there—I'll post any response they give me, if they get back to me.