THE BLOG
05/09/2013 01:09 pm ET | Updated Jul 08, 2013

High School Violated Class President's Rights With Suspension

As you may have heard by now, Heights High School in Kansas suspended the Senior class president, Wesley Teague, after he posted a Tweet that compared the football team to a nonexistent college team. But, curiously, few websites are reporting that the school's action violates well-established legal principles. 

Basically, students at Heights started using the nickname "Heights U" to imply that their athletes competed at a college level. Teague, who was reportedly on the track team, tweeted: 

Wichita State University doesn't have a football team. So Teague compared the nonexistent Heights University with the nonexistent WSU Football Team. 

The school's reaction was to suspend Teague and ban him from graduation ceremonies.  Why? Because the tweet was "very inappropriate," according to school spokeswoman Susan Arensman, and because it caused a "major disruption to the school day." 

Assistant principal Monique Arndt took the cluelessness up to 11 by saying that Teague had "acted to incite a disturbance."

The disturbance? Allegedly, someone, somewhere, threatened to fight someone else, at some point. So rather than punish the person who leveled the threats, they punished the person who expressed a pretty defensible opinion (imaginary things are like other imaginary things). 

This much has been reported. Somehow, everyone has missed a few of the obvious legal defects with the school's actions.

The first one I'd like to point out is that incite is a term of art. To incite someone, in the legal sense, is to put out a call to action that is likely to be received and calculated to have an effect

One way to tell a tweet could not possibly incite anything is that the only verb in the tweet is a state-of-being verb. It doesn't ask anyone to do anything. A semiliterate person (a group we should hope includes the majority of school administrators) ought to be able to figure out that, whatever you think of this tweet, it doesn't incite any damn thing.

The second thing I'd point out is that this is a classic example of a heckler's veto. A student says something that upsets athletes, someone threatens violence, and the school punishes the speaker and not the person threatening.

Well, Vice Principal Arndt, let's see how devoted you are to this position. Because I don't like what you said about Wesley Teague, and I want to fight you. That's right, as soon as somebody gives me a car and a map to Heights High -- through the gates of Imaginationland, where you and your athletes seem to live, through the gumdrop fields where nobody is allowed to think negative thoughts, to your castle made out of gingerbread and frosting and sunshine -- you and I are going to throw down.

So, Vice Principal Arndt, are you going to punish the idiot whose comments incited me to threaten to fight you? 

Or is it possible that the people who make threats are the ones in the wrong? 

(Since realism, judgment, and a sense of humor appear to be in short supply at Heights High, rest assured that I have no intention of ever actually coming there, since I prefer not to travel to Third World banana republics run by childish despots where civil liberties are a punchline.) 

How is it even possible that you could be in a position of authority in a school? 

Is this your school's anti-bullying policy? When someone threatens to hit someone, you punish the victim for having the bad taste to put his face in the way?

Let's briefly review the law. Assuming even for the sake of argument that you're supposed to be the Internet Police ("Hey look everyone, I found something I disagree with online!"), you certainly could not have more authority to discipline it than the limits of the standard articulated in Tinker v. Des Moines.

That means, at a minimum, the speech would have to be illegal or create a substantial risk of a physical event that would prevent the ordinary operation of school. But the school has a mechanism for punishing people who make threats within its ordinary operation.

If you have identifiable people who are threatening to fight, you suspend them. If you don't have identifiable people who are threatening to fight, then you're making it up and you don't have a legitimate, let alone substantial, risk.

Does it at all bother you that you're actively teaching students, by example, how to conduct themselves in the most un-American way possible? Maybe that's the only thing Teague got wrong: he made a joke about the school's athletics, when really, the biggest joke at the school is sitting behind your desk.

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