The Volokh Conspiracy

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Virginia Bill Would Require Rules "for the Prevention of Inequities Involving the Use of Hate Speech or Ethnically or Racially Insensitive Expressions"

"during athletic and academic competitions sponsored by the [high school athletics] organization's member schools."


The full text reads:

§ 22.1-271.9. High school interscholastic athletic and academic competition; prevention of hate speech and ethnically or racially insensitive expressions.

A. With such funds as may be appropriated by the General Assembly for such purpose pursuant to the general appropriation act, the organization governing high school athletics and academic activities for public and approved nonboarding nonpublic high schools (the organization) shall develop (i) rules and standards for the prevention of inequities involving the use of hate speech or ethnically or racially insensitive expressions during athletic and academic competitions sponsored by the organization's member schools, (ii) procedures for the enforcement of and penalties for the violation of such rules and standards, and (iii) training materials on such rules and standards.

B. Each member school of the organization shall abide by and implement the rules, standards, procedures, and penalties adopted by the organization pursuant to subsection A and shall ensure that each student who will participate in high school interscholastic athletic or academic competition, the parent of each such student, and each individual, whether paid or unpaid, who coaches a team that will participate in high school interscholastic athletic or academic competition receives and reviews the training materials developed by the organization pursuant to subsection A.

C. The organization shall make part of the process to become a registered official in good standing for any association offering services to the organization an education and training requirement that is consistent with the training materials developed by the organization pursuant to subsection A.

The bill doesn't make clear whether the rules would be limited to students or would cover spectators as well. A restriction on "hate speech" or "ethnically or racially insensitive expressions" (even if defined precisely enough by the "rules or standards" to avoid unconstitutional vagueness) by spectators would be a viewpoint-based restriction on private speech, and thus unconstitutional. There is no "hate speech" exception to the First Amendment; but it's telling that the Legislature doesn't seem satisfied even with the ill-defined concept of "hate speech," but seeks to extend the prohibition to an even broader category of "ethnically or racially insensitive expressions."

Public schools would have more authority over vulgarities said by their students at school-sponsored events (under Bethel School Dist. No. 3 v. Fraser) and over speech that disrupts the event (under Tinker v. Des Moines Indep. Comm. School Dist.). But I doubt that all "ethnically or racially insensitive expressions" would qualify; whether "hate speech" would qualify would depend on how it's defined. (See, e.g., then-Judge Alito's opinion in Saxe v. State College Area School Dist. (3d Cir. 2001), striking down a public high school speech code.) And I doubt that the government can force private schools to impose viewpoint-based restrictions on their students, even as a condition of participating in a competitions with public schools.

Thanks to Hans Bader for the pointer.