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A student made a rap video that mentions ‘genocide.’ What can administrators do?

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Students protested outside Spanish Fort High School in Alabama on Monday after a student’s racist, transphobic, and queerphobic rap video was circulated on social media.

“The rap video that was made is disgusting. It basically says if you are not a straight, Christian white man, you should die,” Paeton Jones, a senior at the high school, told AL.com.

The student’s video includes statements such as “protect the white race by imposing the travel ban,” calls students in the LGBTQ community “weird,” and says that “perhaps mass genocide is the only answer.”

Although the Baldwin County School System said it can’t do anything to respond to a video produced off campus, students argue the school got involved in other off-campus issues in the past, like after a student allegedly sexually assaulted another student and a teacher hosted a post-prom party. They’re now asking why this video should be treated differently.

Although the U.S. Supreme Court ruled on off-campus behavior and free speech in a landmark case decades ago, recent state and federal court decisions on the issue have been fractured. This means it’s still legally hazy as to whether school administrators can punish the student responsible for the racist, queerphobic rap that literally suggests committing genocide. There have been cases where off-campus speech has been subject to restrictions when it involved a threat, however. In a 2016 analysis piece published on the Southern Poverty Law Center’s website, Carolyn Schurr Levin, an attorney who specializes in media law and the First Amendment, wrote that there is a “dire need” for a definitive U.S. Supreme Court ruling on the issue of off-campus speech at a time when students are frequently posting on social media outside of school and federal circuit courts are treating it as on-campus speech. Right now, there is a lack of clarity for both students and administrators, she writes.

According to a 2015 Pew Research report, 73 percent of teens have access to smartphones and 24 percent of teens go online “almost constantly.” Thirty-three percent of teens have access to messaging and sharing apps such as Kik, WhatsApp, and Yik Yak. Racist comments by college students on the Yik Yak app have garnered a lot of media attention in the past few years. Its anonymity and ability for people to post to a running feed for only people near or on a specific campus was supposed to encourage people who are normally silent to speak up, but what it ended up doing was enabling racist and sexist threats, the Washington Post explained. Yik Yak fell out of popularity among students, however, and in April, the company announced the app is shutting down. But that doesn’t mean students will stop using any social media tool that enables harassment.

According to a Southern Poverty Law Center survey taken by educators after the election, 40 percent said they heard language that was derogatory toward students in the LGBTQ community, Muslims, immigrants, and students of color. Nine out of 10 of those surveyed said the election negatively affected students’ behavior and mood. “In a 24-hour period, I completed two suicide assessments and two threat of violence assessments for middle school students,” one Florida middle school teacher said in the survey.

Some of the old tests of free speech protections at school make little sense in 2017. The landmark 1969 Tinker v. Des Moines U.S. Supreme Court case, for example, established that students have freedom of speech and expression in school but could still have administrators suppress their speech in cases where speech “materially and substantially disrupt the work and discipline of the school.” The case also distinguished off-campus speech from on-campus speech, which meant that off-campus speech could not be suppressed by administrators. But now students can see social media posted off-campus at any time during their school day. One could argue that the social media posts may well disrupt their education.

When off-campus social media behavior could pose a threat to other students, courts may decide to side with school administrators and say it creates a substantial disruption and is therefore not protected speech. The 2013 decision in Wynar v. Douglas County School District is one example where courts decided off-campus social media messages were threatening enough for administrators to temporarily expel a student. The student, Landon Wynar, a sophomore high school student, reportedly threatened to shoot specific classmates and talked openly about his weapons in his MySpace messages.

Mary Margaret McKeown, United States Circuit Judge of the U.S. Court of Appeals for the Ninth Circuit, wrote in her opinion that not all off-campus messages are off limits and that, “Given the subject and addressees of Landon’s messages, it is hard to imagine how their nexus to the school could have been more direct; for the same reasons, it should have been reasonably foreseeable to Landon that his messages would reach campus.”

Another case involved Taylor Bell, a Mississippi high school student who was suspended from school in 2011 after he made a rap video and posted it on Facebook and YouTube. The video criticizes two teachers for what Bell alleges is their sexual harassment of female students at the school. In 2015, the U.S. Court of Appeals for the Fifth Circuit ruled that high school administrators didn’t violate Bell’s First Amendment rights, saying speech is not protected if it involves threats, harassment, and intimidation of a teacher, even if it happens off campus.

If a student calling attention to sexual harassment of students is considered to be threatening teachers, does a student who casually mentions the possibility of genocide of LGBTQ students have their speech protected? The problem is that it is still unclear. As Mark Joseph Stern wrote for Slate, federal and state courts are “totally, hopelessly fractured” on this question of speech protections for students’ online speech. Although some courts have defended it at all costs, others say that there should be exceptions. Until then, it’s unclear whether racist, queerphobic rants that mention genocide are considered threatening enough for administrators to act without being accused of stepping on First Amendment rights.

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