School officials explained to the newspaper that they intended to “respect the school's diversity” and “shield students from a potential political firestorm.” In the name of diversity and maintaining such a “safe space,” they banned a group founded “to protect people wherever justice, freedom, truth and dignity are denied.”
Did they make the right call?
The decision to ban the club can be defended with ideas about social justice and diversity that many in the educational community endorse. According to this logic, members of a historically marginalized group were offended; even now, the group in question is targeted with hate crimes far beyond its numbers; some group members in New Albany object to Amnesty International––they experience the organization’s politics or rhetoric as triggering, and feel that it creates an unsafe or hostile space for some students; and it is problematic to second-guess or question members of a historically marginalized group when they explain what they need to feel safe and included. The best course was therefore to ban Amnesty International.
I reject that framework and the outcomes that flow from it, preferring a liberal approach that emphasizes free-speech protections and viewpoint-neutral rules. That liberal, free-speech framework better protects high school students who want to start an Amnesty International chapter even if they constantly advocate for Palestinians. And it would protect students who wanted to start a group advocating for Israelis.
That liberal framework is often violated, but it is still the law. As Eugene Volokh, a UCLA law professor and First Amendment expert, explained at the group blog he runs:
The First Amendment bars the government from discriminating against groups that want to use school facilities based on viewpoint. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist. (1993). This is part of the general principle that the government can’t limit access to most other government property based on viewpoint. When it comes to K-12 schools, the government has some extra power to restrict speech that is vulgar, pro-drug, or (the school’s likely argument in this case) likely to be substantially disruptive. But there needs to be some serious evidence of likely substantial disruption.
Indeed, in Tinker v. Des Moines Indep. School Dist. (1969), the Supreme Court held that even anti-Vietnam-war speech, which was of course highly controversial at the time (the events took place in December 1965), could not be suppressed absent real evidence that it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The same must be true of pro-Palestinian speech, anti-Israel speech and other speech related to the conflict. That something is a “political lightning rod topic” or might “potentially bring negative attention to students” is no more a basis for suppressing pro-Palestinian speech than it was for anti-Vietnam War speech.
2. The Equal Access Act of 1984 likewise makes it illegal for public schools that get federal money, and which let other noncurriculum-related clubs to meet, “to deny equal access” or “discriminate against” any student group “on the basis of the religious, political, philosophical, or other content of [its] speech.” And while there is an exception for meetings that “materially and substantially interfere with the orderly conduct of educational activities within the school,” I doubt that this exception can apply here, for the reasons I mentioned above.
Beneath Volokh’s analysis, a sharp commenter observed, “the high school's decision is clearly wrong and should be overturned. When it is, it will be yet more evidence of how general civil liberties principles help the unpopular and the powerless.”
