Opinion: A swastika display at a high school does not constitute free speech

San Dieguito Academy Photo courtesy of the school The question of free speech rights arose in recent times over the abhorrent human swastika formation at San Dieguito Academy a high school in Encinitas in the San Dieguito Union High School District The circumstance occurred on May when eight students laid down on the school s athletic field and formed the shape of a swastika to display to a Jewish scholar 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 famously explained 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 of common application of Tinker according to the Foundation for Individual Rights and Expression FIRE is that K- 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 context It s hard to imagine how the targeted learner could not have been seriously impacted in solutions that would negatively affect his educational milieu The law specifically forbids bias-related crimes that include hate-related graffiti including swastikas and other offensive symbols California Penal Code 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- students who violate California schooling codes Section states that a pupil can be considered for suspension or expulsion if school leadership determines that the pupil has committed one or more of acts one of which is bullying The development code defines bullying as threatening physical or property harm causing substantial interference with the pupil s academic performance impeding a novice s ability to participate in or benefit from services or initiatives provided by the school or largest part relevant to the human swastika event causing any novice to experience a detrimental effect on their physical or mental soundness Terrorist attack After the horrific Oct attack on Israel by Hamas terrorists the California Department of Justice issued a legal alert to schools one month later on Nov titled Guidance regarding students free speech rights and schools obligation to prevent discrimination and harassment The legal alert states In light of contemporary 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- students under California Instruction Code laws stating that students generally may express their opinions in K- 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 atmosphere 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 setting Under California law all students have the right to participate fully in the training process free from discrimination and harassment In addition to state law protections the alert cites Title VI of the federal Civil Rights Act of 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 apprentice 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 landmark court circumstance 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 event pitted the neo-nazi National Socialist Party of America against the city of Skokie Illinois home to a large number of 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- school setting do not have the right to create such a reprehensible display that demeans Jewish students and can poison a school s educational surroundings Anti-gay T-shirts This question of free speech for students reminded me of an occurrence in the Poway Unified School District in when attendee Tyler Chase Harper a th 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 required Harper to remove the shirts citing a prospective 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 incident Harper v Poway Unified School District led to a major court battle over the balance between apprentice free speech rights and a school s obligation to protect students from harassment In the Ninth Circuit Court of Appeals ruled - that the school did not violate Harper s rights because the school could limit apprentice speech that invaded the rights of others The dissenting opinion stated that the school engaged in viewpoint discrimination In the scenario went to the Supreme Court but because Harper had since graduated the affair 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 fleetly 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 a large number of adults this day are setting an example of pushing the limits by engaging in the bulk 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 multiple 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 learning writer and opinion columnist and can be reached at suttonmarsha gmail com