A Virginia State Senator has proposed a bill targeting “hate speech” and “racially insensitive expressions” in academic or athletic competitions between schools — even at private schools. His bill, SB 285, doesn’t define “hate speech,” though. There are many places in society where hate speech is protected by the First Amendment, and thus can’t be banned. So the bill is unconstitutional, at least in part.
The Supreme Court struck down a hate-speech ordinance in R.A.V. v. St. Paul (1992), ruling that it violated the First Amendment. In Dambrot v. Central Michigan University (1995), a federal appeals court struck down a university harassment code that banned creating a “hostile or offensive educational” environment by “demeaning or slurring individuals … because of their racial or ethnic affiliation”; or “using symbols, [epithets] or slogans that infer negative connotations about the individual’s racial or ethnic affiliation.”
School officials have much more authority to restrict racist speech in K-12 public schools that they think may cause a disruption, like someone waving the confederate flag at a black student. But sometimes, racially demeaning speech is protected even in K-12 schools, like when a judge struck down a ban on clothing that “demeans” people based on their race, sex, or sexual orientation, in Pyle v. South Hadley School Committee (1994).
Schools also have more authority to restrict speech when it occurs in school-sponsored activities in the public schools. But still, there isn’t some well-defined category of hate speech or racially insensitive speech that this bill incorporates by reference. Those categories remain legally undefined. Due to that fact, under college codes aimed at preventing racism and hate speech, students and campus newspapers have been charged with violations for expressing commonplace views about racial subjects, such as criticizing affirmative action, or discussing the alleged racism of the criminal justice system, even though such views are constitutionally-protected speech. Sometimes, speakers disciplined for discriminatory speech successfully challenge their discipline on the grounds that their college’s policy was too vague to apply. (See, e.g., Cohen v. San Bernardino Valley College (1996)).
Moreover, the bill applies to speech outside the public schools, and to students from “nonpublic high schools.” That poses additional problems under the First Amendment. The Supreme Court ruled in Mahoney School District v. B.L. (2021) that the government has less power over student speech outside the public schools than in them. For example, a judge overturned a student’s discipline for his vulgar gesture to a teacher, where it occurred far away from his public school, rather than in it. (See Klein v. Smith (1986)).
These cases involved public school students, but the same principle applies even more strongly to limit state legislatures’ control over the speech of students who are not even attending the public schools at all, but rather are on private property. As a court noted in striking down the government’s attempt to regulate speech in a private bus shelter, “Private property affords the strongest protection to free speech.” (See Metro Display Advertising v. Victorville (1998)).
The bill is at least mercifully short. The full text of SB 285 reads:
§ 22.1-271.9. High school interscholastic athletic and academic competition; prevention of hate speech and ethnically or racially insensitive expressions.
A. With such funds as may be appropriated by the General Assembly for such purpose pursuant to the general appropriation act, the organization governing high school athletics and academic activities for public and approved nonboarding nonpublic high schools (the organization) shall develop (i) rules and standards for the prevention of inequities involving the use of hate speech or ethnically or racially insensitive expressions during athletic and academic competitions sponsored by the organization’s member schools, (ii) procedures for the enforcement of and penalties for the violation of such rules and standards, and (iii) training materials on such rules and standards.
B. Each member school of the organization shall abide by and implement the rules, standards, procedures, and penalties adopted by the organization pursuant to subsection A and shall ensure that each student who will participate in high school interscholastic athletic or academic competition, the parent of each such student, and each individual, whether paid or unpaid, who coaches a team that will participate in high school interscholastic athletic or academic competition receives and reviews the training materials developed by the organization pursuant to subsection A.
C. The organization shall make part of the process to become a registered official in good standing for any association offering services to the organization an education and training requirement that is consistent with the training materials developed by the organization pursuant to subsection A.
Law professor Eugene Volokh says the bill is vague and could violate the First Amendment:
The bill doesn’t make clear whether the rules would be limited to students or would cover spectators as well. A restriction on “hate speech” or “ethnically or racially insensitive expressions” (even if defined precisely enough by the “rules or standards” to avoid unconstitutional vagueness) by spectators would be a viewpoint-based restriction on private speech, and thus unconstitutional. There is no “hate speech” exception to the First Amendment; but it’s telling that the Legislature doesn’t seem satisfied even with the ill-defined concept of “hate speech,” but seeks to extend the prohibition to an even broader category of “ethnically or racially insensitive expressions.”
Public schools would have more authority over vulgarities said by their students at school-sponsored events (under Bethel School Dist. No. 3 v. Fraser) and over speech that disrupts the event (under Tinker v. Des Moines Indep. Comm. School Dist.). But I doubt that all “ethnically or racially insensitive expressions” would qualify; whether “hate speech” would qualify would depend on how it’s defined. (See, e.g., then-Judge Alito’s opinion in Saxe v. State College Area School Dist. (3d Cir. 2001), striking down a public high school speech code.) And I doubt that the government can force private schools to impose viewpoint-based restrictions on their students, even as a condition of participating in a competitions with public schools.
Editor’s Note: This article was originally published by Liberty Unyielding on January 13, 2022 and is crossposted here with permission.