The march of white supremacists in Charlottesville, Virginia on Aug. 12 has called attention to Americans who are openly proud to be racist and raised questions about how everyone else (including President Donald Trump) should respond.

Overt racism appears to be an issue for public schools, too. Groups that track incidents involving hate symbols and racial slurs have reported an increase in bias-related incidents in school districts across the nation this year, including swastikas spray-painted on Syosset High School in August.

When incidents involving expressions of racial animus occur in schools in New York State, district leaders will be under scrutiny for how they react. This article will cover the relevant legal standards.

The Dignity Act
Acts of racism are so reprehensible that school officials might want to severely punish such behavior. However, any disciplinary response must be consistent with your own school district’s policies and New York’s Dignity for All Students Act (the Dignity Act).

The Dignity Act imposes an array of obligations on school districts aimed at reducing the prevalence of bullying and discrimination in schools. It discourages responses to incidents that involve one-time interventions that focus on imposition of a punishment. This does not mean that discipline cannot be imposed when incidents of bullying or discrimination take place, but rather that discipline should be viewed as one of many tools that may be called upon when responding to such situations. This is called a “restorative justice” approach to discipline. (See NYSSBA’s report on Rethinking School Discipline)  

When incidents of bullying or discrimination occur on campus or during school sponsored events, the Dignity Act requires school districts take effective steps to address the situation at hand and also consider whether other action may be necessary to alter the school’s culture so as to minimize the likelihood of similar incidents going forward. In other words, the Dignity Act imposes a duty on school offi cials to take steps to address school climate, not just the perpetrator of a specific infraction.

Do bullies have free speech rights?
Fulfi lling the Dignity Act’s mandate to foster a school environment free of discrimination and harassment can be fraught with legal hazards. For instance, school administrators must be cognizant of the need to respect students’ First Amendment free speech rights.

The U.S. Supreme Court ruled in Tinker v. Des Moines Independent Community School District (1969) that students’ First Amendment rights do not stop at the schoolhouse door. However, school offi cials can, depending on the circumstances, lawfully intervene to prevent certain forms of student speech, and they can discipline students for forms of speech that violate school policies or legal standards for permissible discourse.

School boards have broad authority to dictate what type of student expression is permissible in the context of curricular/school-sponsored student speech. In terms of non-curricular/non-school sponsored speech, it is well-established that schools may restrict student expression that is vulgar or lewd, speech which encourages illegal drug use and speech which constitutes a threat to harm others. Other forms of student expression can be restricted when it is reasonably foreseeable that the expression may materially and substantially disrupt the work and discipline of a school, according to the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New York State (see Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 2007 and Doninger v. Niehoff, 2011).

While every school situation is different, court decisions can inform administrators’ decisions. Recent U.S. Supreme Court decisions in various contexts have prioritized free speech rights over governmental concerns about the offensive/discriminatory nature of certain speech and harm caused to those offended by such speech. For example, in Snyder v. Phelps (2011), the Supreme Court ruled in favor of religious protestors who yelled offensive and outrageous anti-gay comments at funerals of military personnel.

Offensive images on clothing pose challenges for schools
One particular challenge for school officials involves expressions on the clothing that students wear, particularly depictions of the Confederate fl ag (see “Out-of-state court rulings offer clues on handling Confederate flag displays,” On Board, Jan. 23, 2017).

Lately, among some young people, clothing with offensive words or symbols has become fashionable. Swastika-themed clothing is available on Etsy.com. According to Reuters, a company called Snowflake Enterprises has submitted applications to trademark a version of the “N-word” to appear on clothing, hard liquor and beer, and “intends to turn the slur into a brand.” And if you type “Patriotic Clothing for Proud White People,” into Google, you’ll be taken to a site selling T-shirts for $23.88 with Klan images. One of the shirts reads, “My boss is an Austrian painter,” and the website tempts customers to “Test others’ historical knowledge and show your pride at the same time!” Not only is it lawful to sell such clothing, but such products can be protected by trademark or copyright, according to the U.S. Supreme Court in a June ruling. In Matal v. Tam

Not only is it lawful to sell such clothing, but such products can be protected by trademark or copyright, according to the U.S. Supreme Court in a June ruling. In Matal v. Tam the court said that individuals or companies may trademark symbols or phrases considered offensive.

The case involved an Asian American music group that sought to copyright their band’s name, “The Slants.” The U.S. Patent and Trademark Offi ce (PTO) denied the band’s application for copyright protection because it concluded that the term “slants” was disparaging to Asians. The Supreme Court ruled in favor of the band. It stated that the statute relied upon by the PTO “violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The court further ruled that it is unconstitutional for a federal law to prohibit the registration of trademarks that may “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead.”

Does the First Amendment also protect disparaging forms of speech in the unique setting of a public K-12 school system? Yes, according to the U.S. Court of Appeals for the Seventh Circuit. In Zamecnik v. Indian Prairie Sch. Dist. (2011), the court emphasized that the First Amendment protects offensive expression when it issued a permanent injunction barring an Illinois school district from restricting shirts or buttons with the phrase “Be Happy, Not Gay.”

The issue arose when the school observed an annual “Day of Silence” to draw attention to harassment of homosexuals. Students and faculty participated by remaining silent during the school day and wearing shirts that said, “Be Who You Are.” But some students instead wore shirts or buttons
saying, “Be Happy, Not Gay.” The school district contendedthat the latter violated a school rule forbidding “derogatory comments,” spoken or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” It asserted that by banning the “Be Happy, Not Gay” shirts, it was “just protecting the ‘rights’ of the students against whom derogatory comments are directed.”

The court disagreed, ruling that “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.” The court said that to justify prohibiting their display, the school would have to present “facts which might reasonably lead school offi cials to forecast substantial disruption.”

Analysis
Responding to student expressions that may denigrate a particular religious, racial or other group will likely present an ongoing challenge for educators. School districts have a legal responsibility to protect the rights of students to free expression as well as a mandate to provide a school environment free of discrimination and harassment.

If student expression results in substantial disruption to a school’s operations, disciplinary sanctions may be imposed. When offensive expression in question does not satisfy the “substantial disruption” standard or other standards established by federal courts for limits on free speech, educators should embrace the Dignity Act mandate for schools to respond to discriminatory expression using a variety of strategies beyond mere discipline.

In general, a response that is educational in nature would be consistent with the law.

For instance, if a student wears a T-shirt stating that “the Holocaust is a hoax,” what should administrators do? One option would be to invite a rabbi or individuals with a personal connection to the Holocaust to speak to students about how the rise of Nazism impacted their families and others.

What if administrators become aware that students are engaging in biased or otherwise offensive discussions online? Perhaps they could inform students about what happened to 10 high school seniors who had been accepted into Harvard and posted items in a Facebook group titled “Harvard memes for horny bourgeois teens” in the spring of 2017. The university withdrew their acceptances.

Consistent with their mission to ensure students are college-and career-ready, school offi cials might want to invite local business leaders to explain how employers demand civility and respect in the workplace and how they have dealt with discriminatory expressions and conduct.

Furthermore, school-wide training or presentations aimed at fostering empathy for those subject to discriminatory treatment may help improve school climate and promote tolerance and civility. School board members may fi nd that relatively small investments in such programs can help avoid incurring large legal costs.

By adhering to the Dignity Act and the principles of restorative justice, school districts can meet their legal duty to provide a school environment free of discrimination without violating students’ constitutionally protected free speech rights. By rising to this challenge, schools can foster the type of civil and respectful learning environment that all students deserve.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Charles E. Symons of the Ferrara Fiorenza law firm.