The Right to Free Speech at Baraboo High

This is the picture that sparked a national uproar when, despite being taken in May, went viral on Twitter earlier this month. The photo shows a large group of mostly white high school students from Baraboo, Wisconsin posing for a prom picture by raising their arms in Nazi salutes. The picture was captioned, “We even got the black kid to throw it up” and tagged with #BarabooProud.

Since the photo has made its rounds on the internet, the students in the picture have been criticized by everyone from the ACLU to the Auschwitz Museum, and activists from all over the country have put pressure on the Baraboo school district to suspend or expel the boys seen participating. But on November 27, School District Administrator Lori Mueller wrote in a public letter that the district will not punish the students because they were acting within their First Amendment right to free speech.

Is this decision valid? The Constitution certainly protects the students from being arrested or charged for making the Nazi salute; that precedent was set by the decision on Texas v. Johnson, in which the Court found that symbolic speech was protected by the First Amendment. But is it true that school districts can’t limit the symbolic speech of their students?

This question is typically brought up in discussions surrounding dress codes and students being penalized for not following them. While courts typically hold that schools have the right to enforce bans on clothing restrictions such as hats, low necklines, and spaghetti straps (gotta keep those distracting shoulders hidden), they tend to side with the student if there is a social, political, or religious message attached to the clothing in question.

One of the most famous cases dealing with this issue was Tinker v. Des Moines (1969). As a form of symbolic protest against the Vietnam War, high school students Beth and John Tinker and Christopher Eckhardt wore black armbands to school. The students refused to remove their armbands and were subsequently suspended. They sued the school district, arguing that the punishment had infringed on their freedom of expression. In a 7-2 majority, the Supreme Court ruled in favor of the students, with the Court Opinion stating that students do not lose their freedom of speech as guaranteed by the First Amendment when they step onto school property. The decision also established a standard for what speech can and can’t be justifiably banned at school: the language in question has to “substantially interfere with the work of the school or impinge upon the rights of other students.”

The case of the Baraboo students, however, interacts differently with the legacy of Tinker than other instances of symbolic speech at school, namely because the photograph wasn’t taken at a school-sponsored event. While it was taken before the school’s junior prom, the students pictured aren’t on school property–they’re gathered on the steps of the county courthouse. They aren’t wearing school paraphernalia, there were no school faculty or staff present, and the photographer was a parent, not someone hired by the school. If the district did want to defend a punishment on these students in court, they would need solid proof that the action pictured in the photo had caused a disruption at school or interfered with the school’s operations. Seeing as it’s now six months since the picture was taken, it’s unlikely that this proof will ever come to light.

Which isn’t to say that such a disruption didn’t occur, or that the action captured in the photo isn’t indicative of a school culture that stokes bigotry by refusing to punish students for racist behavior. Jules Suzdaltsev, a journalist who shared the photo on Twitter, reportedly received word from many Baraboo students that the picture did not show an isolated incident. “I am being flooded with messages from students of this school about some of the guys in the group photo,” he tweeted. “It sounds like there is a lot of racist bullying and the school tends to do nothing about it.” He then shared some of these accounts from Baraboo students, which included instances of students yelling “White Power” in the hallway after Trump was elected, Latino students recorded on school grounds in a video captioned “dirty Mexicans in bound,” and several white students directing the n-word at black students in the hallways. One former student wrote in a message to Suzdaltsev, “Not only is this school disgustingly racist, but having to attend there as a trans person ruined my mental health. I was called queer and faggot too many times by students both on and off school property….This is true for every minority. Baraboo turns a blind eye to everything, and only does something when it blows up in their faces.”

The students in the prom photo, and all those attending Baraboo High, have the right to express their beliefs through symbolic speech without the threat of government punishment. But does this mean the school district should neglect minority students’ right to a non-hostile educational environment? After reading the student accounts shared by Suzdaltsev, is it possible to argue that the racist actions of Baraboo students, especially those committed on school grounds, don’t interfere with the wellbeing of the student body?

It’s commendable that the Baraboo school district wants to uphold the First Amendment and protect its students’ unalienable right to free speech. For the sake of their students’ safety and wellbeing, I hope Baraboo school district officials use their own free speech in turn to support the voices of its minority students and teach the perpetrators of this racist bullying that their actions, and the mindset behind them, is unacceptable.