John S. Wilson wrote a provocative opinion piece for CNN, “My View: Kids have free speech right to be racists outside school.” He looks at the fact that some public schools have handed down suspensions from sports and extracurricular activities for student who sent racist tweets. The tweets were sent in response to a black NHL player scoring a game winning goal to defeat the Boston Bruins in the playoffs. Wilson makes a free speech argument and asserts:
“…school officials may want to look toward the Supreme Court on this point. The 1969 Tinker v. Des Moines ruling held that students’ speech was subject to punishment if it “materially and substantially” affected an institution’s educational mission. These few tweets couldn’t possibly pass that bar and thus qualify for the schools’ disciplinary action.”
I tend to agree with him although not with as much certainty. If a school is trying to celebrate diversity and teach students to engage productively in modern society, then it is in the interests of the school to act when students’ actions reveal a need for education. That action would, however, be more curricular and less disciplinary, discussion rather than suspension.
If a school has a diverse environment where such tweets could cause tension between groups leading to hostility that would disrupt the educational environment, then I could see action being taken. Still in that case I would think that the action would have to address what was happening on school grounds with the local police department handling any potential clashes in the larger community. In short, I cannot see administering punishment for the speech just because the speech could lead to negative actions. It is not the fault of the speaker if some people react badly (unless the actions are as predicable as what happens when one yells “Fire!” in a movie theater).
I also see a problem with drawing limits here. What tweets are actionable? What about a tweet calling for violent action against George Zimmerman? What about Facebook posts? Is it a matter of publicity and media exposure? Could a student who might dislike another student, retweet a post or two so that they gained publicity and the notice of the school?
The only way I see the school’s actions as acceptable is in the fact that the response involved extracurricular activities and sports. Participation in such activities is a privilege and not a right, and students in those activities can be held to a higher standard than the general school community. For example they can be subject to drug testing. Depending on the existing policies of the school, it might make sense that a student who reacts in a racist manner as a sports fan might be kept off of a team or out of an activity. Such a student might not be one the school grants the privilege of wearing its colors and representing it. In that way I see the school’s actions as having a greater legal justification, yet I still would favor education over suspension and a response that does not delve as deeply into the murky waters social media.