There is an important lawsuit that has been filed in California after four high school students were suspended for simply “liking” Instagram posts deemed racist. The lawsuit could force reconsideration of the erosion of free speech rights for students, including the widening scope of discipline for student speech outside of schools. School officials now believe that they have full license to punish students if their personal views outside of school do not conform with accepted values. This case did have troubling aspects that raised legitimate concerns (though these students were not the author of the posting). The question is one of authority to regulate speech outside of schools if they do not involve criminal threats.
I have previously written about the increasing monitoring and discipline of teachers for conduct in their private lives. We have seen teachers face discipline over social media pictures holding a weapon. Even a picture of a teacher holding a glass of a drink is enough to trigger discipline. We have seen a steady erosion of the free speech rights of students in the last decade. The Supreme Court accelerated that trend in its Morse decision. Former JDHS Principal Deb Morse suspended a student in 2002 during the Olympic Torch Relay for holding up a 14-foot banner across from the high school that read “Bong Hits 4 Jesus.” The case ultimately led to the Supreme Court which ruled in Morse v. Frederick ruling in 2007 for the Board — a decision that I strongly disagreed with and one that has encouraged over-reaching by school officials into protected areas. Even cheerleaders are expected to conform their free speech to accept positions or risk removal from their teams.
In this case, the students — three of whom are Asian — were suspended after school officials at Albany High School in the San Francisco Bay Area learned that they “liked” or briefly commented on Instagram posts that included disturbing images. There are different accounts of what the images showed. One image reportedly showed an image of a black doll juxtaposed with a KKK member, a torch and a noose. Other images included photographs of specific students at the school. The posting also included jokes about students’ weight and looks. The school insisted that it was merely trying to provide “an inclusive and respectful learning environment for all of our students.” Those are disgusting images and I agree with the school’s concern. However, there remains the question of the rights of students to express their views in their private lives. Students have a right to hold obnoxious views. I do not know if these students are racist or the specific images involved, but, even if they were racists, there would still be the question of why school officials are policing and punishing viewpoints out of school.
These were private accounts of the students unconnected to the school. Moreover, the lawsuit alleges that the school ordered an “atonement” exercise held after the return of the suspended students. This included 15 students including the four plaintiffs who were allegedly “lined up in full view” of the student body and “screamed at.” Two of the students were allegedly assaulted on their way out of the exercise.
I do not question the motivations in this case. I do think that it is a serious matter any student or staff member is shown with a noose or threatening image, as some accounts allege. I can understand calling the students into the school to raise the matter with them and their parents. I can also understand an investigation into the existence of any threat to a staff member or student. However, I am still uncomfortable with the notion that school officials are now authorized to regulate and punish speech outside of school. If there is not a criminal threat, I fail to see the basis for that authority.
I also have serious concerns over the atonement exercise if the allegations are true. I cannot imagine a more dangerous practice if school officials isolated students to some “atonement exercise” before the whole student body.
In the end, I tend to resolve such questions along free speech lines. This is no frivolous lawsuit, though I worry that courts will further erode free speech by blindly yielding to the expanding scope of authority of school officials over private speech of students.
What do you think?