Was California high school right to punish students using Nazi symbols? It’s complicated
Most of us can agree that Nazism and everything it stands for should be denounced. Less clear, however, is how to deal with those who openly endorse hateful and violent ideologies — especially when, as in a recent local case, they’re students at a public high school.
Debates about regulating hate speech — which is mostly protected by the First Amendment — inevitably come down to hyper-specific actual and hypothetical cases. What if someone posed with a Nazi flag and posted it on Facebook? Undoubtedly abhorrent but protected nevertheless. What if a student wore a shirt depicting a Nazi flag to school? That’s likely not protected.
Speech protections and school discipline collided last month at Wheatland Union High School. Eight of the Yuba County school’s students posed with swastikas and other Nazi and white supremacist symbols in a photo circulated on social media. School administrators said the students were subject to unspecified discipline as a result, provoking further uproar.
Had the students posed with Nazi symbols on campus, their subsequent punishment probably would have been justified under Supreme Court precedents. But because the photo was taken and posted off campus, the school’s power to discipline the students is debatable.
“Assuming there’s not an argument the school can make that this off-campus activity somehow had a disruptive effect on school operations, I think ordinary First Amendment rules would apply,” said David Snyder, executive director of the First Amendment Coalition. “Nazi iconography — as abhorrent as it is — is generally protected under the First Amendment.”
UC Davis Law Professor Aaron Tang disagreed, however, saying Wheatland Union acted correctly.
“The school has an obligation to protect every student’s ability to safely come to school and learn, and it can punish students who support legacies of white supremacy and the slaughtering of millions of people,” Tang said.
What began as a controversy over student speech limitations has since become even messier after threats against the school — another kind of expression that may or may not be protected. As the lines between on-campus and off-campus speech are increasingly blurred and complicated by virtual culture and real violence, are the old rules governing free speech and student speech adequate?
A win for student speech
The Supreme Court’s latest ruling in favor of student speech came in June, when the justices found that schools generally cannot regulate what students do and say off campus.
At issue in Mahanoy Area School District v. B. L. was whether a Pennsylvania high school could discipline a student for posting an off-campus photo of herself on Snapchat with the caption “F— school f— softball f— cheer f— everything” after she failed to make the varsity cheerleading team. As punishment, the student was suspended from the junior varsity cheer team for a year.
The opinion by Justice Stephen Breyer found that school officials had violated the cheerleader’s First Amendment rights. The ruling followed a precedent set by the bedrock student speech ruling Tinker v. Des Moines Independent Community School District, which held that public school officials cannot censor student expression “unless they can reasonably forecast that the speech will substantially disrupt school activities or invade the rights of others.”
But the court also ruled that schools can discipline off-campus student speech if it involves threats, bullying or harassment. From Tang’s perspective, this is the caveat that gives Wheatland Union the right to discipline its students.
“Schools can punish off-campus speech when that speech makes (other) students feel uncomfortable coming to school,” Tang said. “Nazi symbols aren’t targeted at individual students, but they do target students.
“It endorses a history of violence against … Jewish students and students of color. It’s invading their rights to feel safe at school.”
High school faces threats
After punishing the eight students pictured posing with Nazi symbols, Wheatland administrators said they faced not only vocal criticism from the community but also violent threats.
“This has been one of the most traumatizing experiences in my life and in the lives of my colleagues,” Wheatland Union Superintendent Nicole Newman said in a Facebook video posted last month. “We have been subjected to death threats on a daily basis as well as threats that are aimed against our families.”
Death threats, it should go without saying, are not generally protected by the First Amendment. Or are they? Dominic White, a 22-year-old Truckee resident, posted a threatening tweet in the wake of the controversy — asking “whos down for shooting up wheatland high” — and faced no legal consequences.
Yuba County District Attorney Clint Curry told The Bee that White’s tweet, unlike some of the other local threats, was directed at the offending students rather than school administrators. “Mr. White told law enforcement he was upset to think there are Nazis in America,” Curry said.
White was arrested but ultimately not charged with a crime for his clear and intentional threat of violence targeting a specific school. In a lengthy Facebook post, the Yuba County District Attorney’s Office acknowledged that some community members would be “understandably outraged that the tweet in this case cannot be punished criminally.”
“The tweet by Mr. White was inflammatory and dangerous given the mass killings that have become all too common on campuses in our country, but the evidence is insufficient to prove beyond a reasonable doubt that White intended his ill-advised question to the Twitterverse to be taken as a threat,” the post said.
Under California law, such speech is considered criminal only if the perpetrator threatens to unlawfully kill or severely injure another person and intends the words to be taken as such.
“The threat must be so clear, immediate and specific that the victim is reasonably afraid it is about to happen,” Curry, the district attorney, said. “The tweet in this case did not satisfy those elements.
“Some in our community are outraged that the criminal law does not prohibit the tweet in this case. Others are outraged that the criminal law does not prohibit the expressive acts of the children who adorned themselves with Nazi symbols. Still others are outraged that the school or government would seek to punish either for exercising their freedom of expression. The outlet for all of that outrage in a representative democracy is our Legislature.”
The prosecutor added, however, that he doesn’t think legislative speech restrictions are the answer.
“Speech can be dangerous, but it is also dangerous to our democracy to legislate what may seem in the moment to a majority to be commonsense restrictions on speech,” Curry said. “The California criminal threats statute is carefully drafted in light of that debate to recognize the boundary between free speech and criminal threats. To attempt to go further with the criminal law would be a mistake.”
Punishing juveniles for their ignorant decision to pose with hate symbols but not an adult who essentially threatened murder doesn’t sit right with many in the community. But Tang made an important point about the content and context of the Wheatland students’ hateful expression.
“We know the Wheatland students are physically going to be in the building every day with peers who are Black and Jewish, but we don’t know the 22-year-old (Dominic White) will ever be in the building or drive by the building,” Tang said. “A lot of the weight here is being carried by the content these students used. … These students endorsed a message of slaughter, and I don’t think it’s a far leap to be worried about Jewish and Black students.”
Education as an answer
We will undoubtedly see more examples of off-campus student speech that threatens to — or does — cross the line. How should we respond to students who use social media to perpetuate racism, anti-Semitism and bigotry?
A rise in anti-Semitism has left American Jews like me wondering what can be done in a country that holds free speech in rightly high regard. Many Jews — including Holocaust survivors — believe education is key. Learning about the historic genocide and persecution of Jews might instill a sense of empathy in students.
But what happens when our educators are asked to instruct students on “both sides” of Holocaust history, as teachers in Texas were recently asked to do? Or when teachers are discouraged from even mentioning race in the classroom amid the continuing frenzy over “critical race theory.”
We do students an enormous disservice by refusing to engage them in hard conversations about the realities of racism and discrimination. That can only lead to more of what happened in Wheatland: uninformed students wielding symbols whose enormity they can’t fully grasp; strained relations between educators and parents; and a divided community searching in vain for common ground.