News & Updates

November 23, 2018: Prom Photo Sparks Debate About Students’ First Amendment Rights

Students at Baraboo High School in Wisconsin who appeared in a photo seemingly giving a Nazi salute are protected by free-speech rights and will not be disciplined, the superintendent said in a letter to parents. The photo of the 60 boys that went viral online was taken by a parent outside a county courthouse before prom.

The photographer says that the salute was misinterpreted.

Associated Press Baraboo News Republic

Analysis & Opinion

Why the Students Could Not Be Disciplined on Free Speech Grounds

The Milwakee Journal Sentinel spoke with attorneys and legal scholars to puts the school’s decision to withhold punishment into context.

Some key points to consider are the Tinker Standard, the nature of a school-sponsored event, and a student code of conduct.

Milwakee Journal Sentinel

Joe Pinsker writes in The Atlantic on why Baraboo ultimately could not punish the students. The vagueness of the students’ intentions, and the incident’s detachment from the school are contributing factors.

The Atlantic
First Amendment Protections Should Not Protect Public Condemnation of Anti-democratic Ideas

Arguing against the school’s decision to hold back punishment for the Nazi-saluting students, Kathryn Schumaker, a professor of Civil Rights at The University of Oklahoma, reasons in The Washington Post that the Nazi saluting can be seen as disruptive to the school’s educational function and that it runs counter to the school’s ability to provide equal education for all.

“The First Amendment is not a shield against public condemnation of ideas that are antithetical to American democracy,” she writes.

The Washington Post
Unequal Access to Free Speech in Schools

Mary Beth Tinker, plaintiff in Tinker vs. Des Moines, and Hadar Harris, executive director of the Student Press Law Center, explain how they see the First Amendment applied differently to groups of of students based on race. They point out that black high school students protest during the national anthem and are punished, but the predominantly white Baraboo students seemingly giving the Nazi salute in the photo are protected by free speech rights. 

The Washington Post

Watch Mary Beth Tinker speak to FAW about the enduring impact of the Tinker decision.