EMAW…Even Racists.

     He doesn’t specify which “law” although it seems fairly obvious that he means the First Amendment to the U.S. Constitution which prevents an “abridging [of] the freedom of speech….”  But we all know that the government may abridge that freedom if the speech fits a classification traditionally held to be unprotected (incitement, defamation, obscenity, etc.).  The simple fact is, the disgusting statement made by the depraved racist fits none of these categories neatly, and therefore the university did not have much recourse here.

     However, they should have expelled him anyway.  There is always room for the Supreme Court to add new categories if societal change demands it, and the climate is ripe for change.  Further, there is not much guidance from the previous rulings of the Court on the protection of online speech made by university students.  The closest test we have is from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  There the court essentially holds that a public school (primary or secondary in this case) may not punish a student for an act of speech unless it causes a material and substantial disruption.

     There is no question that it caused a disruption, what with most of the K-State student athletes (with support of the head football coach) threatening to boycott the school’s sports programs.  But what could have been an interesting issue is whether a disruption in the sports program, which is the most high-profile and valuable tool in bringing academic admissions applications to the table would be considered “material and substantial” at the university level (although it probably would not be in primary or secondary levels).  And that’s if the Court applied the Tinker test at all!  Perhaps they would apply a different standard entirely to students who are legal adults.

     Either way, the university would have to survive strict scrutiny for the expulsion to remain effective.  But win or lose it could have been a landmark opportunity for Kansas State University to show its commitment to real and lasting change while generating some much needed answers to questions at the heart of an ever-expanding rift in our society.  I am disappointed in KSU for opting out cheaply.  By distancing itself from conflict, and effectively kneeling before a Twitter post (no longer available to view), it sends the wrong message to the student athletes of color KSU relies on to generate enthusiastic, yearly enrollment in its academic programs.  Perhaps the football team will carry through on its promise and we may see a “material and substantial” disruption.