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Last May, several dozen young men gathered on the steps of the courthouse in Baraboo, Wisconsin, to take pictures before their high-school prom. It’s not clear what was going through each of their heads—though one could guess—when the majority of them extended their right arms, mimicking the Nazi salute as a parent snapped a picture. The students dropped their arms and proceeded to prom.

But six months later, after the image was posted on Twitter, their gesture became a matter of national fascination and horror. “Regardless of the details of the photo or the intentions in the hearts of those involved,” wrote the Baraboo school superintendent, Lori Mueller, in a letter to parents two weeks ago, “the truth is this is an image that has rightly been described as hateful, frightening and disappointing.”

Hateful, frightening, disappointing—but ultimately unpunishable. That’s what the Baraboo School District concluded after an investigation into the incident this month. In another letter, Mueller said that students’ actions were protected under the First Amendment, explaining that “we are still unclear about some key details” and reiterating that “we cannot know the intentions in the hearts of those who were involved.” (Neither the district nor the high school responded to a request for an interview.)

Is a school really not able to discipline its students for, whatever their intentions, making the same gesture that Nazis did (and do)? Catherine Ross, a professor at George Washington University’s law school, says when considering students’ First Amendment rights, it’s important to gauge whether what they’re doing or saying could be confused with their school’s official stance on a certain issue. In the case of Baraboo, Ross notes, the photographer wasn’t hired by the school and the students weren’t wearing anything that represented the school.

And before schools punish symbolically hateful speech or actions, Ross told me, the school’s case is stronger if it can cite related incidents that disrupted the learning environment in the past. (For instance, it’s much easier for a school to ban displays of the Confederate flag if it can point to a history of violence against black students.) “I haven’t heard anything about this school that suggests that they’ve had violent anti-Semitic or anti-LGBTQ incidents—the sorts of things that Nazis arrested people for just because of who they were,” Ross says.

Another law professor, Michigan State’s Kristine Bowman, says that because the photo was taken in the lead-up to a school event, Baraboo High School did have jurisdiction over the students’ behavior. “But that doesn’t mean that the school can necessarily punish them,” she says.

Bowman says that one difficulty when punishing symbolic speech is establishing students’ intent. “On one hand, I could see someone looking at the picture and saying, ‘Well, we understand exactly the message,’” she says. “And yet, I also can understand why the school officials [were] trying to figure out a whole lot more about what was going on.”

Some of the details reported about the Baraboo photo underline Bowman’s point. One boy in the photo (who didn’t raise his arm for it) told a reporter that the photographer instructed the group “to make the sign” and snapped the picture before he had a chance to duck out of the frame. Another boy said that the photographer asked the group for a “high-sign” and many in the group complied by sticking their arms out. Speaking for himself, the photographer, a parent named Peter Gust, maintains that he instructed the group to “wave,” bidding their parents goodbye before the dance; he calls those who read hate into the picture “dead wrong.”

Perhaps all of the boys with raised arms understood what they were doing. Perhaps only a few of them did, and the others played along. Perhaps they were, every last one of them, baffled by an unclear instruction from a parent. Perhaps they thought it funny to respond with something offensive. Perhaps it isn’t possible to be certain of “the intentions in the hearts of those involved.”

But it is possible to make some deductions. Either they didn’t know what they were doing (which seems a failing of education), knew but meant the gesture as a joke (which would be inexcusably flippant), or knew and meant the gesture to convey its hateful meaning (which would be self-evidently awful). At any rate, if someone showed me their middle finger and told me they meant no disrespect, I probably wouldn’t believe them.

Still, those are moral objections, and as far as the law is concerned, Bowman says, what matters is whether a student’s speech would “materially and substantially interfere” with a school’s educational process. That was a standard set by the Supreme Court in 1969’s Tinker v. Des Moines, which upheld multiple Iowan high schoolers’ rights to wear black armbands to school in protest of the Vietnam War. What constitutes interference, though? “That is a great question, and honestly that is something that courts have been struggling with for decades as they have tried to apply the Tinker standard,” Bowman says.

Bowman adds that because students at public schools are “effectively a captive audience”—all states have laws that require kids to attend school, public or otherwise—schools have more license to shape the community environment, and thus more power to restrict speech, than the government might in contexts where attendance is not compulsory. For instance, the Supreme Court has ruled that a student can be punished for making statements that promote the use of illegal drugs.

Just where that line is when it comes to symbolic speech is something schools struggle with, too, and some have punished students for far less than an apparent Nazi salute. For example, four years ago, a Wisconsin high school suspended two black basketball players for one game after their hand signals in a photo were interpreted as gang signs, though the punishment was soon reversed. And last year, in the midst of the NFL protests against racial injustice, the superintendent of Bossier Parish Schools, a district in Louisiana, said that schools’ football “players and coaches should stand when our National Anthem is played in a show of respect”; a letter from one high-school principal explained that offending students could risk playing time or their spot on the roster. (A spokesperson for Bossier Parish Schools told me that the district issued its statement only after a reporter asked about its policy, not because any students actually kneeled.)

I asked Ross, given schools’ policies on all sorts of other matters (such as students’ clothing and appearance), whether a free-speech doctrine that permits a pre-prom Nazi salute to go unpunished is misguided; she responded with a firm no. “Public schools are not only bound by the Constitution, they have an obligation to teach students that constitutional rights are real, not a sham, not something from the days of the founders but for them too,” she wrote in an email. “This is how students can learn (under constructive faculty supervision) to exercise their rights as active citizens.” (Private schools, for the record, have more leeway to punish student speech because they are independent from the government.)

“I realize that recent events in the U.S, and the rise in hate crimes tempt many to rethink these foundational principles,” she went on. “But hate crimes, violence and the like are conduct, not protected speech.”

Still, as Bowman and Ross both pointed out, even if a school can’t punish something like the Baraboo incident, there are other things it can do. Bowman says that the school is allowed to take the opportunity to establish that it doesn’t condone anti-Semitism. “I think the best response is for the school to take that as a teaching moment and to say, ‘These students, your peers, had a right to do this, and here’s why it’s a bad idea,’” Ross says.

The Baraboo School District appears to be planning something along those lines. Mueller, the superintendent, said the school was going to implement “restorative practices” to bring the community back together, and to take steps to directly address hate. Baraboo may be constrained when it comes to punishing students, but it’s not when it comes to educating them.

This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.

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