Protected Speech? Off School Property? Education Lawyer Weighs in on Creston Photo Questions

DES MOINES, Iowa  --  After the photo of the Creston High School Football players wearing KKK-style hoods went viral, the comment sections of stories exploded with questions regarding the legal aspect of the situation.

What is protected speech? What can the school legally do to punish the students? Does it matter that the photo was taken off school property?

Education law attorney Jeffrey Krausman weighs in to answer those questions.

First, is hate speech protected speech?

“There are cases that say the school can ban speech when it engages in harassment of others, for example, and I think hate speech would be considered harassment of others," said Krausman. "But trying to ban speech that happens away from school is different from banning speech at the school. While you might have a pretty good argument if this had occurred during school or at the school, it would clearly violate the standards. When it’s away from school it’s a much bigger problem for a connection to be made between that and the school environment."

Next, even though the location was away from school, can the school hand out punishments like suspension expulsion?

“When it comes to denying them access to school, to the day-to-day education process, the school has a pretty high burden to show. It must show that it would lead to disruption, substantial disruption, and not just the school fears that, but that there's real good evidence that that is going to happen,” said Krausman.

The students, however, were all members of the football team and have since been kicked off. Why is that a simple decision for the school?

“Students aren't entitled to much due process as it relates to being denied participation in extracurricular activities. So if there's a good conduct rule that says you can’t engage in things that might harass others, they can enforce that relatively easily,” said Krausman.

With those three questions answered, the new question is one that, according to Krausman, the courts really haven’t weighed in on: in the age of social media, do things that happen off-campus have more of an effect inside the school, even if they didn’t occur there?

“I don’t think the Supreme Court has really ever examined the question of how much out of school conduct a school can regulate," said Krausman. "What’s happening with social media is that the environment of the school has changed. It is having to deal with what goes on on the internet in a way that wasn’t true five years ago or 10 years ago. This is a new challenge, and I think we are going to see schools looking to the courts for guidance, and so far it hasn’t been clear how much they can do. We know there’s a line somewhere, we just don’t know where it is yet."

A case with several questions, some now answered, but with more to go.