The question of free speech rights arose recently over the abhorrent “human swastika” formation at San Dieguito Academy, a high school in Encinitas in the San Dieguito Union High School District.
The incident occurred on May 30 when eight students laid down on the school’s athletic field and formed the shape of a swastika to display to a Jewish student taking a flight lesson who flew over the field expecting to see a “smiley face.”
Hideous act of antisemitism certainly.
But do students have the right to do such things under constitutionally protected free speech?
The short answer is no, students do not have the same free speech rights as adults.
Although the U.S. Supreme Court (in Tinker vs. Des Moines, 1969) famously said that it “can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” there are limits.
“The most common application of Tinker,” according to the Foundation for Individual Rights and Expression (FIRE), is that “K-12 students’ free speech rights are limited under the ‘substantial disruption’ standard which allows schools to restrict speech that materially and substantially interferes with the educational environment.”
It’s hard to imagine how the targeted student could not have been seriously impacted in ways that would negatively affect his educational environment.
The law specifically forbids bias-related crimes that include “hate-related graffiti including swastikas and other offensive symbols.”
California Penal Code 422.55 defines a hate crime as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race, ethnicity, religion or sexual orientation.”
Regarding punishment of K-12 students who violate California education codes, Section 48900 states that a pupil can be considered for suspension or expulsion if school leadership determines that the pupil has committed one or more of 18 acts, one of which is bullying.
The education code defines bullying as threatening physical or property harm, causing substantial interference with the pupil’s academic performance, impeding a student’s ability to participate in or benefit from services or activities provided by the school, or — most relevant to the human swastika case — causing any student to experience a detrimental effect on their physical or mental health.
Terrorist attack
After the horrific Oct. 7, 2023, attack on Israel by Hamas terrorists, the California Department of Justice issued a legal alert to schools one month later, on Nov. 9, titled, “Guidance regarding students’ free speech rights and schools’ obligation to prevent discrimination and harassment.”
The legal alert states, “In light of recent world events, numerous issues have arisen regarding students’ rights of freedom of expression and their right to be free from discrimination and harassment in educational environments.”
The alert provides a general overview of how free speech rights apply to K-12 students under California Education Code laws, stating that students “generally may express their opinions in K-12 school settings, even on controversial subjects, unless their conduct will materially and substantially disrupt the work and discipline of the school or invade the rights of others.”
The alert addresses schools’ obligation to protect students from discrimination and harassment, which includes “countering or preventing a discriminatory hostile school environment where there is harassment based on an individual’s protected characteristic, such as their ethnicity or religion.”
To elaborate, “Schools have a responsibility to protect all students from threats and harassment, and to prevent discrimination due to a hostile learning environment. Under California law, all students have the right to participate fully in the education process, free from discrimination and harassment.”
In addition to state law protections, the alert cites Title VI of the federal Civil Rights Act of 1964 that prohibits discrimination by educational institutions that receive federal funding.
“This prohibits discrimination against students of any religion, including those who are or are perceived to be Jewish, Muslim, Christian, Sikh, Hindu, or Buddhist” — when the discrimination, for example, involves:
- Racial, ethnic, or ancestral epithets, slurs or stereotypes
- A student’s looks, including skin color, physical features, or style of dress that reflects ethnic, ancestral, and religious traditions
- Potentially or allegedly inherited traits
- Stereotypes about people who share certain ancestral or ethnic characteristics
- A foreign accent; a foreign name, including names commonly associated with particular shared ancestry or ethnic characteristics; or speaking a foreign language
Nazi march
To understand how the image of a swastika is so toxic, one argument in a famous 1977 landmark court case states that a swastika represents something close to a physical assault for Jews.
It’s a complicated constitutional question of free-speech rights. But to summarize, the case pitted the neo-nazi National Socialist Party of America against the city of Skokie, Illinois, home to many Holocaust survivors and Jewish residents, who objected strongly to the party’s application to march through their city.
Whether the image is a form of protected free speech for adults may be debatable. But there’s no question that students in a K-12 school setting do not have the right to create such a reprehensible display that demeans Jewish students and can poison a school’s educational environment.
Anti-gay T-shirts
This question of free speech for students reminded me of an incident in the Poway Unified School District in 2004 when student Tyler Chase Harper, a 10th grader at the time, was disciplined by school administrators for wearing T-shirts with anti-gay messages on a day when the school’s Gay-Straight Alliance held an event to promote LGBTQ+ acceptance.
According to news reports, the shirts read: “Homosexuality is shameful” and “Be ashamed, our school embraced what God has condemned.”
Administrators asked Harper to remove the shirts, citing a potential for school disruption and over concern for the rights of gay students. The school was on high alert, because the prior year the school dealt with campus tension and altercations over sexual orientation issues.
Harper sued the school district on the grounds that his First Amendment rights were violated.
The case, Harper v. Poway Unified School District, led to a significant court battle over the balance between student free speech rights and a school’s obligation to protect students from harassment.
In 2006, the Ninth Circuit Court of Appeals ruled 2-1 that the school did not violate Harper’s rights because the school could limit student speech “that invaded the rights of others.” The dissenting opinion stated that the school engaged in “viewpoint discrimination.”
In 2007 the case went to the Supreme Court but, because Harper had since graduated, the case was deemed moot. So the fundamental question remained unanswered.
Learning by example
High school students cannot be permitted to say or do anything and claim they have the constitutional right to throw around hate-filled slogans, symbols or words at targeted minority students and get a free pass.
Educational institutions have an obligation, moral as well as legal, to forbid such conduct and act on it quickly with appropriate punishment for violators.
A swastika is a deplorable image for Jews, akin to Blacks seeing a noose. Hateful symbols aimed to trigger visceral reactions are meant to generate a sense of emotional pain, hurt, victimization and a lessening of one’s humanity.
Sadly, too many adults today are setting an example of pushing the limits by engaging in the most awful conduct under the protection of free speech rights.
Although what the eight San Dieguito Academy students who participated in this vile swastika display did is shocking, it really isn’t so surprising given the monstrous way too many adults engage in similar conduct.
Too bad we can’t suspend or expel those adults from society as easily as we can students from schools.
Anyone experiencing perceived civil rights violations of state or federal laws can file a complaint under the state’s Uniform Complaint Process.
Marsha Sutton is an education writer and opinion columnist and can be reached at suttonmarsha@gmail.com.
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