The TAB’s Jonathan Dame shared news via Twitter of this item docketed by Newton City Councilor Jake Auchincloss. Do you agree with Auchincloss’ position? And is this the kind of resolution that should be debated by Newton’s City Council?
Auchincloss: Don’t punish North students who flew confederate flag
by village14 | Oct 3, 2016 | Newton | 50 comments
Let’s have a vigorous defense of free speech that isn’t simply an assertion that free speech is valuable, therefore it’s valuable.
What is the content of the NNHS students’ speech? What principle were they defending or critiquing? Was there a point to flying the flag, other than simply to provoke?
Free speech, as a blanket proposition, is a luxury that white men (and boys) can indulge in. Flying the confederate flag in 21st Century Newton, Massachusetts, is nothing more than an act of aggression, designed to make a targeted group — African-Americans — uncomfortable and marginalized, if not feeling actually unsafe. A resolution such as Jake’s, is both irrelevant (the constitutionality of punishing the students will be adjudicated without reference to a non-binding resolution by the City Council) and misguided. The City Council should re-affirm our city’s commitment to equality for and fairness to all, not to some outdated, abstract principle.
A law school classmate proposed a grand theory of constitutional law as it applies to students: it’s all different. It’s probably not clear that this is constitutionally protected speech. But, regardless of the constitutionality, this is just not speech worth defending.
Although the values of a community are intertwined throughout its people and various institutions, and often a cause with one institution will have an effect on another body, there are some walls not meant to be breached. Although we elect government officials to determine many things about education and our schools, I am disturbed when they involve themselves in determining PUNISHMENT, even the lack thereof, of our children and young adults, even if ‘only’ rendering an official opinion of same. This should be played out in our appropriate institutions who bear the direct responsibility of balancing education, discipline, free speech, and securing an area of learning.
In this matter, Mr. Auchincloss in his capacity as city councilor is entitled to his opinion and nothing more. Projecting forward, bringing a resolution from a government body in determining matters better left to the schools, especially punishment, makes for a bad precedent.
No and no. First of all, it’s a school discipline matter, and therefore confidential, right? How does he know what, if any, punishment they received? Second, any student who drives a car repeatedly and rapidly around Tiger Drive in the middle of the school day honking and waving out the window to attract attention is going to get in some trouble. Does including a confederate flag somehow negate the rest of the behavior? Finally, from the NPS Rights & Responsibilites Handbook:
A. Freedom of Speech
All students are free to express their own points of view and are protected from those who would inhibit that
expression. However, freedom of speech is a right that carries with it certain responsibilities; and its exercise is subject to certain limitations as to time, manner and place.
Nope, pure and simple, others will explain it.
Well, Jake, henceforth you can count on never receiving my vote or support.
Too bad you lack the understanding of how hurtful that flag is. For the record, would you have also tabled such a request if they had been flying a swastika?
Looking forward to your confirmation ASAP – it’s important that your constituents know that there are indeed no limits of decency imposed on your blind absolutism.
People need to slow down and think. No one should ever be criticized for defending the principle of free speech. Even those who disagree with Jake in this particular case would do well to remember he’s a veteran who actually put his life on the line for this country and the things it’s supposed to stand for.
Personally, I feel the incident at North should be judged in its totality. Speeding car + confederate flag + hasty getaway = racial intimidation. So I think those students should be punished. But I have no problem hearing anyone’s opinion that they are protected by the First Amendment.
The students did not display the confederate flag.
Oh my lord, If I hear one more time about how this is about driving around Tiger drive at a reckless speed, I am going to bust a gut laughing. There is nothing worse than twisting the law to suit your particular preferences. No better than sending the IRS after people when they say things you don’t like.
Sean writes, ” this speech is just not worth defending”- ughhh. That is precisely the speech worth defending.
It has been said before, had that flag had any number of other images printed on it instead of the Confederate, would Tricia be calling for action? I doubt if it had been for a cause she believed in would she be complaining so much about the disruption.
Let’s say that had an been a US flag. Believe it or not, there are many that don’t view that flag any better than the confederate. Does that make it a symbol of hate legally? It is a pathetic misappropriation of what a threat constitutes.
You think many American Indians think the stars and stripes represents anything other than the systematic genocide of their people? Many of us learned for the first time, slaves were made to build the White House, you know which flag was flying on top of that building while they were toiling for their slave masters ( the US government)? It wasn’t the confederate.
Should we stop flying the US flag as well? Doesn’t it represent a lot of hate in its history too?
People can goose step in Nazi uniforms all they want, if that’s all they ever do, it is not a threat. Will it make people uncomfortable, yes. Will it do worse for those directly traumatized by them, yes. It is still a protected right in this country; and it should be.
I don’t want people to say hateful or even stupid things, but we have to put up with it, if we want free speech.
Sorry Neal – you are dead wrong. If one of my kids did the exact same thing, except waving a Red Sox flag, and got a one day suspension for it, I’d tell them that I hoped they enjoyed their 15 seconds of fame and to suck it up. And there’s almost nothing I believe in more fervently than the Red Sox. Again – time, manner, place.
The number of educated people who deride the idea of the 1st Amendment is disheartening. We don’t need some group of “educated” clowns who are “right” about the type of speech deciding what should and should not be constitutionally protected. A bunch of you are clearly missing the entire point of the 1st amendment.
Tricia: Hopefully, not “dead” wrong. In any case, then your comments should not include anything to do with the fact it was a confederate flag. You specifically raised the issue that it was (D2) discriminatory, or harassment. You brought up what that flag represents,( to you, I might add).
The only reason Councilor Yates wants a history lesson, and not drivers ed remediation, is because of the design of the flag.
This is all about the confederate flag, it sure wouldn’t have made the TV news, if they had just been honking their horn a few times.
Neal, yes, I do see the expression as designed to disrupt and intimidate. But that’s not the point – my point has always been that the time, manner, and place of their “expression” removes the First Amendment issue – it’s specifically a school-speech case, not a public-speech case, and there IS a difference. Therefore, they don’t get a free pass on their behavior because their “expression” is protected. (Of course it wouldn’t have made the news without the flag. I thought we were talking about the school’s response, not the media’s response.)
Mike not Striar, no one is deriding the idea of the First Amendment. No one. Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of
communication.”
My high school son and I had a conversation, the day of the incident, about whether the school could legally punish the students involved, or whether they had free-speech rights to do what they did. We went and looked up the precedents, and found that the courts have consistently found that schools can ban the Confederate flag, Jake’s claim nonwithstanding.
“In 2011, a panel of the Sixth U.S. Circuit Court of Appeals ruled in Defoe v. Spiva that schools were allowed to exclude racially hostile or contemptuous displays from protected speech because the use of such language could result in conflict or violence on school grounds. The panel’s majority opinion stated: ‘Expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.'”
(http://www.annenbergclassroom.org/speakout/is-a-school-ban-on-the-confederate-flag-unconstitutional). See also: http://www.firstamendmentcenter.org/tag/confederate-flag
I recall a prior incident several years back, when [former Principal] Jen Price sanctioned a couple of students for posting derogatory things about a teacher online. Now THAT was a First Amendment violation.
Today, if someone were really interested in testing the schools tolerance for the First Amendment, I’d recommend wearing a tee shirt to school emblazoned with a cannabis leaf in support of the upcoming ballot initiative to legalize recreational marijuana. It would be very interesting to see how school administrators would respond to that.
Continuing in @Mike Striar’s theme, from what was reported in the Globe the NPS administration asked the student who recorded the video to take it down off his Facebook page. That Facebook video was then picked up by a Black Lives Matter group that helped drive the awareness. Had he complied it’s possible the story would never have gotten the attention it deserves.
As far as I’m aware, he wasn’t sanctioned or retaliated upon in anyway. But even making that request is, at best, disheartening. If we want to talk about free speech and the schools, maybe we should look there first.
Is this docket item for real or is from The Onion?
Sure, fine to continually defend free speech. Doing so as a rapid response to the display of a racist symbol at a public school is ill-conceived to say the least.
Perhaps a better response: put up a Black Lives Matter banner.
Jessica, it is important to read the cases and distinguish facts. In Defoe v Spiva, the Sixth Circuit found there was “uncontested evidence of racial violence, threats, and tension” that justified a determination that allowing students to wear clothing with the Confederate flag on it would cause substantial disruption and materially interfere with education at the school. While there certainly have been other racially charged incidents at North, none rise to the level present in the Defoe v Spiva case. Nevertheless, as I previously noted, whether this incident caused a material or substantial disruption at North is a question for the school district to answer, in the first instance, and maybe ultimately for the courts.
There is also a legal distinction, in that Massachusetts has passed a law which provides stronger protection for students’ free expression rights than virtually any other state. Chaoter 71, Section 82 of the Massachusetts General Laws provides in relevant part that:
In Pyle v South Hadley School Committee, a case involving a violation of a school dress code, the United States Court of Appeals for the First Circuit deferred to the interpretation of Chapter 71, Section 82 by the Massachusetts Supreme Judicial Court. The SJC held that the statute “is unambiguous” and protects the rights of students as long as the time, place and manner of expression is not disruptive. Thus, the statute as interpreted by the SJC gives students perhaps the broadest free speech rights in the country.
What is troubling to me, and I believe also to Councilor Auchincloss, is that the police were called to investigate and disciplinary proceedings begun without a clear determination that this incident had created a substantial disruption. And while it is not clear whether punishment was threatened, the student who had posted the video of the incident on Facebook was asked by the administration to take it down. In fact, there might not have been any disruption if others had not seen the student’s post and publicized it.
Chuck’s and Neal’s comments are spot on. Absent a material or substantial disruption, this was protected speech.
This comment takes the cake:
Psst, it sure as hell was disruptive, and offensive, to the student who filmed it. And other students can be heard nearby, and it sure as hell was disruptive to them.
Are you genuinely implying that any disruption, if it occurred, could have in some way been the fault of the student who filmed this?
PS:
If that’s what you and Councilor Auchincloss find troubling out of all this, then heaven help us.
Does anyone remember what happened to the principal who didn’t call the police when a swastika was found on the wall – and in the snow – at a middle school?
Ted, first you say it’s up to the school district to determine if the incident would cause a substantial disruption. Sure seems like they did. Why do you question the determination? Who else should they have consulted?
P.S. Yes, it was amplified because someone filmed & posted it. But a LOT of students & faculty saw it happen; you must have some idea about how news spreads in a high school.
And BTW Ted, it is important to read the cases and distinguish facts. In Defoe v Spiva, the Sixth Circuit found that:
You might want to go back and read the decision’s other references to “material or substantial disruption,” so that you can understand the ruling more clearly.
What is troubling to me, and I think to many other Newtonites, is that we have a couple of councilors who seem to jump to erroneous conclusions based on incorrect interpretation of law.
Given the depth and breadth of the discussion, I think it clear, that if the school’s really wanted to turn this into something positive, it would be to have a real, free and open discussion in the classrooms about freedom of speech, the limits of it; and minority speech, and how that is received in a community. They could use some of the comments right here to illustrate some important points.
The students will learn more about civics and the law, and the constitution, than they ever would in a regular classroom.
Not a lecture, but a discussion, facilitated by even handed faculty; would be the most important aspect to make it successful.
As I previously noted, both the United States Supreme Court and the Massachusetts Supreme Judicial schools have held that schools have the right to prohibit speech that causes a material or substantial disruption to the educational process. But in making this ruling in Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), the Supreme Court cautioned that to justify silencing student speech, the school must show more than just a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509. A school may not forbid expression of opinion merely “because of an undifferentiated fear or apprehension of disturbance.” Id. at 508. It therefore follows that a school cannot prohibit expression of an opinion that merely advocates a particular point of view and arouses the hostility of a person with an opposite opinion. As the Supreme Court stated:
Id. at 508-09, 89 S. Ct. at 737-38 (internal citations omitted).
I have no doubt this incident was upsetting to some–justifiably so. But was it materially and substantially disruptive? There are court cases ruling both ways on similar sets of facts. It often comes down to whether there was violence or threats of violence, suspension of school activities, altercations, and the like, which disrupt the education process. Unlike at Day, which involved defacing school property and express threats, was there an actual crime for the police to investigate? If not, why were they called in to investigate? And why pressure a student, however subtly, to take down a post on Facebook publicizing this event, particularly if it was intended to spark awareness and not to incite violence or disorder?
The First Amendment isn’t easy. It demands that we accept the risk of being offended by the words or conduct of another in exchange for the right to express our own, opposing opinions in a free marketplace of ideas. And the remedy offered for the speech we do not like is more speech, rather than imposed silence. That is the price of freedom in a free and open society.
Sigh. Ted, please read Defoe v. Spiva in its entirety. Schools can limit racially hostile speech without having to prove a disturbance.
You and Auchincloss are way off base here, and it’s extremely damaging to the community.
From the Memorandum of Understanding with NPD, mandatory reportable offenses include “any incident involving an actual or suspected hate crime or violation
of civil rights”.
Regarding asking the student to take down the post, I don’t think anyone is defending that. But one possibile reason is that, because the students could be identified by the video, it might open them up to retaliation.
@ Jane Frantz- Check out the front page of the Newton Tab – it certainly looks like a Confederate Flag that they have hanging out the Car window
Jake ran for office on the premise that Marcia Johnson wasn’t smart enough to represent our community, yet evidently he doesn’t have the aptitude to understand the damage that his immaturity is causing many. He and Ted will stubbornly argue their erroneous interpretation of the law, all the while conceding that it is up to school officials – not them – to make the requisite factual decisions as they apply to the First Amendment in our public school system.
I’ve got a lot of respect for Jake, and welcome him debating First Amendment rights. However, what he’s trying to do in regard to this specific instance is wrong at this point in the process, which he ought to take responsibility for. In my opinion, his premature actions are setting a bad example for Millennial leadership.
I don’t ever recall Jake Auchincloss saying then Alderman Johnson wasn’t “smart” or “smart enough.” I don’t even recall him saying he was running against Johnson specifically, as opposed to running for one of two Ward 2 At Large City Council seats.
I do think that Auchincloss’ candidacy was something like an ink blot test. Folks saw what they wanted to see as opposed to what was really there.
I happen to disagree with Councilors grandstanding. So, I tend to disagree with many of them a lot.
I really dislike when they use valuable time to push through a meaningless resolution on some global issue (meaningless in the context of what they are supposed to do.)
I am somewhat ambivalent towards Jake’s action, but certainly not hostile as some seem to be.
He has earned the right on many levels to speak his mind, and others would do well to listen instead of immediately react, if you happen to disagree.
He represents a lot of people, not just one person. I think he takes that seriously.
@Neal,
Auchincloss and Hess-Mahan have certainly spoken their mind and nobody wishes to deprive them of that right.
Those who are opposed to their actions certainly aren’t “immediately reacting” – quite the contrary. As you can see from the comments above, many of us have carefully examined the relevant case law and determined that the councilors’ actions are quite clearly misinformed.
Whether they’ve intended to or not, the net impact of these councilors’ statements has been to provide a modicum of solace to some immature racists who have caused real harm and stress to NNHS students and to the community. These individuals’ actions need to be quickly and fairly dealt with under the school’s disciplinary policy.
It is disgraceful that the disciplinary process is now being influenced by political pressure from at least two misguided, misinformed councilors who are stuck having a trite, puerile debate with themselves over the merits of the First Amendment. Guys, the rest of us settled that debate back in sixth-grade social studies class.
Specifically on Jake’s docket item, there are a couple aspects. Do you agree with his position, do you disagree with his position and do you think he should have put it forth to begin with (whether or not you agree or disagree). I don’t think it should have been put forth to begin with. The councilors are plenty busy, at least they should be. They should skate their lanes and let the school deal with this.
It is a school policy, which I don’t think should go in front of a city council meeting.
As upsetting as the incident was at North, some of these attacks on Ted and Jake are even more upsetting to me. We live in an age when every level of government tramples on our constitutional rights with impunity. The Patriot Act, “stop and frisk,” asset forfeiture… need I go on? So when two elected officials are brave enough to make sure our community abides by constitutional guidelines in a case where people [including myself] have clearly rushed to judgement, I think they are to be applauded, not derided. Try to remember folks, Jake and Ted are not the perpetrators here. They are simply trying to make sure that the two teens involved in this incident are treated fairly, and that public school authorities respect everyone’s First Amendment rights as they are required to do.
To add to Mike Striar’s list, there was also Gov. Patrick’s decision to close all the roads during a snowstorm a few years ago. I thought it was a good and sensible idea when I heard it. But not a good use of government “power.” (I stayed off the roads, by the way.)
Yet many of you who like to see government power checked see no problem with Massachusetts firearms licensing scheme giving police chiefs authority to arbitrarily decide who can and cannot defend themselves… and if all of you who acknowledge biases in law enforcement think that doesn’t result in black and brown people being treated unfairly in some instances, than you are kidding yourself. I can say the same for the lauding of the AG usurping power from the elected body this past July, and nobody batting an eye. It’s fun to pick and choose what rights we will support, and where we will draw the line when it comes to government abuses of power.
@Mike Striar, thank you for your kind words.
@Michael, please re-read Chapter 71, Section 82 of the Massachusetts General Laws: “The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.” This Massachusetts law, which the Supreme Judicial Court has found to be “unambiguous,” grants even broader protection of students’ free speech rights than the First Amendment. As the SJC has held:
The actions of all students should be dealt with under the NNHS disciplinary policy, but the school disciplinary policy must, in turn, respect and comply with students’ legally protected civil rights and civil liberties. In my considered opinion, that is everyone’s business.
The debate about the legal issues here is important and informative. Thanks to all who are contributing.
For me personally, more of an issue is the fact that a white Newton elected official decided to respond to the incident at NNHS by proposing a resolution that specifically mentions the Confederate flag, a racist symbol, and reaffirms citizens’ right to wave it.
A resolution that reinforces the City’s strong support of citizens’ right to free speech of all kinds would be fine. Better would be that plus a request to hang a Black Lives Matter banner. But this response proposed by Councilor Auchinchloss is misguided.
@Ted,
1) Federal case law affirms the ability of school systems to limit racially hostile speech, regardless of whether it causes a disruption or not.
2) Both state and federal law require schools to ensure an environment free of hostility and fear.
3) Even if you’re convinced that in this case Massachusetts General Law takes precedence over federal case law, the video that I’ve viewed, filmed by a (minority) student, seems to show behavior that is disruptive to the learning environment.
I’d really love to hear the backstory on this one. Councilor Auchincloss, have you really been a consistent defender of civil liberties?
Does anybody know the real story of what’s going on here, that merits this unconventional and unnecessary political intervention, shrouded in a righteous “embrace of free speech”? I could hazard a guess…
Michael writes: Councilor Auchincloss, have you really been a consistent defender of civil liberties?
I think enlisting in the marines, becoming an officer, picking up arms to fight in a foreign land, while wearing the uniform, qualifies him as a defender of our liberties, don’t you think?
Isn’t it time people stick to an issue, have a lively debate (on the issue), but not attack the individual just because they disagree with you. (Or question if the embrace civil liberties)
My advice to you Michael , don’t make public your guess, it may only serve to make you look foolish.
Shawn, I would only vote for a resolution affirming support for students’ free speech rights, and for continuing to strive to make Newton a welcoming, inclusive community where diverse opinions can be expressed.
Michael, I cannot speak for Jake, but I have been a member of the ACLU for many years, and a lifelong advocate for free speech rights, including students’ rights. In addition, I have also been a member of Newton’s Human Rights Commission and Fair Housing Committee. I am well aware that this is an unpopular position for me, or Jake, or anyone else to take here in Newton. And I could easily remain silent, keep my own counsel, and dodge this issue without suffering any repercussions. But it should come as no surprise that it just wouldn’t be my style.
The First Amendment is supposed to be content neutral. Government and school officials cannot pick and choose which messages are acceptable, no matter how offensive some of us may find them, absent substantial disruption in the schools. Banning one expression of opinion and not another based on the content of the ideas expressed puts us on a slippery slope. It is therefore important to recognize that the arguments asserted for punishing the students who waved a Confederate flag in Newton have been asserted with equal ferocity against students who displayed the Pride flag at a public school in Florida. Notably, the principal in Florida who punished the students who displayed the Pride flag in support of LGBTQ persons allowed other students to display the Confederate flag at school.
I know that the stand I am taking does not sit well with a lot of folks here in Newton. And I also know that I could lose a lot of votes if I decide to ever run for office again. So I do not do so lightly. But I cannot remain silent on this important issue of universal concern regarding civil liberties and civil rights. Absent a substantial disruption, we should not punish student athletes who take a knee during the National Anthem in support of the Black Lives Matter movement, students who refuse to stand and say the Pledge of Allegiance in class, or display the Pride flag in support of LGBTQ persons, any more than we should punish students who wave a Confederate flag outside the school building, nor the student athletes, students and fans who locked armed at Friday night’s football game in opposition to that symbol of systematic oppression that many of us find highly offensive.
I am an ardent and unabashed supporter of students’ rights of free expression, because the First Amendment and Freedom of Speech are at the very heart of who we are as Americans, and who we should strive to be as Newtonians. We cannot have a welcoming, inclusive community where our students are not permitted to engage in an honest and open discussion about the things that truly matter in our society. The expression of controversial or unpopular ideas can and often does create trepidation and fear, and even outright hostility at times. But if we are going to support the right of students who say “Black Lives Matter,” we must just as surely support the rights of other students who say “All Lives Matter,” or “Blue Lives Matter,” even if each of those divergent views is offensive to or unpopular with a substantial segment of our community. If you cannot defend that, then I would respectfully submit that you just don’t get it.
Michael – like you, I disagree with Jake and Ted on this issue, but questioning their motivations and making insinuations about dark back stories is just wrong. When you go ad hominem, you drag an important discussion down.
You may well be right, but I really can’t get my head around the fact that we didn’t hear from any city councilors regarding the right to, for example, carve swastikas in the snow, and how the individuals who did so mustn’t be punished. If somebody could point to such valiant political intervention in defense of civil liberties during past examples of hate speech, I’d be extremely grateful and my faith in suburban politics would be renewed.
No, I absolutely do not. Last time I checked, service to one’s country did not in itself qualify as an indicator of political fitness. I joined the US Foreign Service because I happened to believe that I could serve my country more appropriately in a diplomatic function than in a military one. Does Councilor Auchincloss somehow have more political credibility than I or the rest of us do, because he served in the military? Does military service now exempt one from any political scrutiny? Regardless, I was talking about civil liberties, not liberty in general. And no, I absolutely do not believe that picking up arms to fight in a foreign land qualifies an individual as a defender of our civil liberties. Is this a serious discussion?
@Ted, I’d somehow missed your most recent response. It’s extremely thoughtful and I appreciate your service in defending civil liberties. Although I don’t disagree with your sentiment, it’s important to differentiate between hate speech and other forms of speech, as well as student speech versus other public speech. As you know, the Supreme Court has made clear distinctions in both cases. In this day and age, the display of the Confederate flag is done expressly to offend, threaten, and incite prejudicial action against protected groups (assuming that the carload of students waving it had any cultural literacy or knowledge of history – which, I will concede, they may well have not). Students are required to attend school, and the students in the school building (including at least one minority) couldn’t simply ignore the waving of a hateful, hurtful, threatening, and prejudicial symbol. The civil rights and civil liberties of a protected group are every bit as valid and worth protecting as the rights and liberties of the carload of flag-wavers.
Michael asks, is this a serious discussion- apparently not. What liberties do you think are military defend if not civil?
Micheal; Jake Auchincloss has political credibility, not because he served in the military; but, because he won an election.
You don’t like his political actions, you go right ahead and complain, that is why he fought, and I bet he would be the first to acknowledge it. But questioning someones commitment to civil liberties, when in fact he is defending just that, is just illogical at the least.
@Michael, I urge you to read the Supreme Court’s decisions in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down ordinance against cross-burning on First Amendment Grounds) (https://www.law.cornell.edu/supremecourt/text/505/377), and Snyder v. Phelps, 562 U.S. 443 (2011) (First Amendment bars claims against anti-gay group for picketing private funeral) (https://www.law.cornell.edu/supct/html/09-751.ZS.html). These cases make clear that the First Amendment to the Constitution does not prohibit so-called “hate speech,” no matter how offensive or racially insensitive it is, and as I noted above, the Massachusetts students’ free speech statute still grants broader protection than the First Amendment. So we have to come back to the question whether waving a Confederate flag outside of the school building actually caused a substantial disruption. Based on the prevailing case law, the answer to that question requires a fact intensive inquiry that raises further questions, such as, did the students’ conduct block the schoolhouse door, or cause a suspension of classes, or incite violence at the school? I do not have an answer, only questions.
(By the way, you and Mike Striar raise other questions about drug-related symbols. Those issues have not yet been litigated in Massachusetts, although I believe that the SJC’s unequivocal decision in Pyle may well have telegraphed the possible outcome.)
One of the students who was suspended was interviewed by NECN. He reportedly claimed that the students were testing the limits of free speech on campus. If so, it may well be that the administration of the Newton Public Schools unintentionally handed itself–and the City’s taxpayers–a lawsuit that we would all have to pay to defend. Does anyone still doubt that this is an issue that should concern the City Council?
FYI – before this became a big media event, before they told NECN that they were “testing the limits of free speech”, they posted on FB that they were just “f-ing around.” So maybe it went from “just a prank, bro” to a free speech test when the former didn’t really work.
@Ted – thanks for the clarification; I’d meant to say that at the federal level there was a case law differentiation of hate speech in school systems, as per Spiva.
This whole incident is just another example of the failures of the Superintendent and the Newton School Committee. The resulting actions taken at Day after the incidents that occurred last school year and the handling of the Superintendent’s plagiarism shows the students of Newton that they can do whatever they want. They won’t lose their job but just be given a new one with the same salary, as seen with Turner, or perhaps just pay a small fine and then it is all forgotten, as seen with Fleishman.
These incidents happen in high schools. They happened back in the day when I was in high school in the 60’s and they’ve been dealt with in various formats and with different consequences (formal and informal). To blame individuals for the incidents is to turn a blind eye to the real issue: how do we deal with the diversity of perspectives in the NPS? The burden is heavy because if we don’t deal with these issues effectively, the lack of tolerance becomes a much bigger problem in society.