Rights exist primarily for one simple reason: to prevent wrongs. However, rights are not absolute — they must exist in a hierarchy because in many instances, rights collide with and contradict one another. The case of racist verbal expressions that provoke violence is one such example. Yes, these instigators have the right to free speech, but that right should be outweighed by the danger of infringing on others’ right to safety.
The same concept can be applied to the issue of bullying in school settings. The provoker has the constitutional right to speak freely, but it is in the greater interest of the school to discipline the provoker and restrict his speech to maintain the safety for the victim and the surrounding community. Private schools have larger leeway: Just last year, USC intervened when a street vendor sold shirts displaying a swastika within school premises because they did not comply with the University’s guidelines for vendors. A similar intervention would take place if a group of students gathered in a KKK or neo-Nazi club.
And yet, there is an argument to be made that a public school cannot expel a student merely for “highly offensive and deeply hurtful statements.” After all, this right to free speech is the crux of the First Amendment.
Differing from the standards of private institutions, public schools — which accept taxpayer money — must comply with the First Amendment, which guarantees free speech in public institutions. Public universities seem to be held to a different standard than other federal institutions, though. While neo-Nazi groups and the KKK are allowed to assemble and meet around the country with limited governmental intervention, students have been expelled from public universities for making racial slurs. One of the most notable examples is a University of Alabama at Tuscaloosa student’s expulsion for posting a video of her using repeated racial slurs to a private Instagram account in January.
The courts have ruled that free speech is “less free” in school settings, and that students shed some of their constitutional rights when they arrive at school gates. These rulings apply directly to grade and high schools, but federal courts have occasionally applied the same concept to college campuses in cases where speech causes a disruption to the educational process.
But it is difficult to make the argument that the mere recital of racial slurs on a private video automatically disrupts the educational process or instigates violence. There have been no reports of violence on the University of Alabama’s campus regarding this incident. The University of Alabama’s president, Stuart R. Bell, released a statement describing the student’s videos as “highly offensive and deeply hurtful.” He also said “the actions of this student do not represent the larger student body or the values of our University.” Bell is absolutely in the right in releasing this statement, and he has an obligation to address student conduct and clarify that the University does not condone the use of such slurs. The First Amendment may provide freedom of speech and expression but does not sweepingly guarantee a right to do so without reproach.
This is not at all to say that the student’s conduct should go unpunished socially. If such conduct comes to the attention of a school, the university should still release a statement calling out the student, explaining that her statements do not reflect those of the school. Professors should be allowed to refuse to write letters of recommendations for her, and students should be allowed to express their vehement disagreement with her words.
Of course, statements that outwardly advocate for violence against a particular group of people can almost certainly be concluded to instigate violence or cause a disturbance. But it is also clear that speech that merely offends a particular group cannot be restricted by the government or public institutions.
As such, personal and identity-based attacks — while they are ineffective policy points and utterly inefficient conversation drivers — are not always punishable by laws. They are, like all other kinds of conduct, always punishable in the court of public opinion. And the sentence in that courtroom may be just as — if not more — agonizing than one handed down by an old man in a robe.
Shauli Bar-On is a freshman majoring in political science. “Point/Counterpoint” runs Wednesdays.