(Washington Post photo illustration; Peter Gust; AP; iStock)

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Black high school students demonstrate during the national anthem to protest police brutality and racism. They are punished. A group of predominantly white students smile and laugh as they appear to give the Nazi salute in a pre-prom photo. That school district says the students are protected by free-speech rights.

Same First Amendment, different outcomes.

Many have cited these incidents as evidence that white students receive more free-speech protections than students of color. While that is generally true, it’s not uniform. At one Maryland school, a football coach supported the decision of his team — predominantly black players — to kneel. At another, the superintendent is supporting a ban on the Confederate flag in the school dress code.


(N/A/J.J. Alcantara/The Washington Post)

Students’ free-speech rights are constantly evolving, in the courts and in society. Despite legal precedents, students' rights are applied in a hodgepodge, unpredictable way. Although school districts are advised by an army of lawyers dedicated to keeping school communities in compliance, schools are made up of humans who often react to student speech with human emotion and their own internalized biases.

The result is that students do not enjoy equal speech rights. And too often, that means students of color and low-income students are slighted. We must change that — not by reducing the rights of some students, but by expanding the rights of all.

Race often has been implicated when students’ free speech rights have been restricted. Ironically, the legal standard that expanded those rights is rooted in black student activism. During the civil rights movement’s Mississippi Freedom Summer — when three young activists were murdered by members of the Ku Klux Klan — black high school students protested by wearing buttons to school that read “One Man One Vote.” For that, they were suspended.

The students took their case, Burnside v. Byars, to court and won at the U.S. Court of Appeals for the 5th Circuit in 1966. The ruling established that students have free speech rights in public schools if they do not substantially disrupt the learning environment.

The “substantial disruption” standard came into play soon after in Mary Beth’s own free speech case. She, her brother, John, and their friend Chris Eckhart wore black armbands to school to protest the Vietnam War. That peaceful protest led to their suspension and then a lawsuit by the American Civil Liberties Union. The 1969 Supreme Court ruling established a core principle of First Amendment law: that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, as with any rights, there would be limits. In establishing the Tinker standard, the Supreme Court reaffirmed that students’ speech cannot cause “material and substantial” disruption of normal school activities or impinge on the rights of others.

Over the past 50 years, that standard has been applied inconsistently. While there are no statistics on how schools enforce students' free speech rights based on race, we know that schools generally punish students of color more severely than white students for similar behaviors.

Black students are suspended and expelled three times more often than white students, according to a U.S. Department of Education report. On average, 5 percent of white students are suspended, compared with 16 percent of black students. Black girls are suspended at a higher rate, 12 percent, than girls of any other race or ethnicity and more than most boys. The disparate rates also apply to American Indian and Native Alaskan students.

Even before getting to discipline, there is a sliding scale when it comes to the free speech rights that youth enjoy. We visit schools throughout the country, and it is undeniable that white students and higher-income students have more rights than others. They are much less likely to have strict dress code restrictions and much more likely to have outlets for expression such as school newspapers and journalism programs. Because of systemic racism and poverty, some students’ speech is more privileged over others.

Some people want schools to even the playing field by taking a more forceful position against hateful comments and symbols. Speech that attacks a person or a group on the basis of race, religion, ethnic or national origin, gender, disability, sexual orientation or gender identity may impinge on the rights of others or, if it’s serious enough, disrupt school, in violation of the Tinker ruling.

In one 2014 case, students who wore American flag shirts to school to mock Hispanic students on Cinco de Mayo were required to change their shirts or leave, because school officials anticipated they would cause substantial disruption because of previous altercations. The 9th Circuit Court upheld the school’s decision because the provocation of the shirts would lead to a “material and substantial disruption.”

Many critical race theorists and human rights advocates question why such hate speech should have First Amendment protection when its aim is to harm marginalized groups.

The Baraboo school district in Wisconsin, where students were photographed making an apparent Nazi salute, has been criticized for not punishing hateful speech. But we believe the district was correct. Instead of leaning on censorship, the district is addressing the problem in a way that will be ultimately more effective — holding community meetings and workshops, encouraging dialogue, and planning curricular interventions. Along the same lines, instead of disciplining students who kneel during the national anthem, many school districts have facilitated discussions about police brutality and racism.

Some believe that the damage caused by hate speech can’t be countered by more “good” speech because unequal power relationships inhibit vulnerable groups’ ability to respond effectively. But the response shouldn’t be on the shoulders of marginalized groups alone. In Baraboo, school officials are using the pre-prom photo as a starting point to involve the entire community in grappling with the core issues of racism and anti-Semitism.

Many school districts have implemented anti-racism and anti-Semitism programs for their students, and there are good programs available like “Teaching Tolerance” of the Southern Poverty Law Center or Facing History and Ourselves. For schools seeking to help their students deal with these issues, and to use their free speech rights in productive ways, these are a good place to start.

Education and democracy are controversial. Without controversy, there is no democracy or education. As advocates of student free speech, we believe that schools need to face controversy. And we need to deal with the inequalities in schools and communities that prevent equal access to free speech.