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Free speech isn’t a gift from the government on your 18th birthday — it’s a fundamental right that belongs to Americans of all ages. But Wisconsin’s Baraboo School District is threatening its students’ and employees’ rights with a proposed “Anti-Hate Speech” policy that deviates from First Amendment standards.

The draft policy, which the school board first considered at its Sept. 23 meeting, proclaims “Hate speech is not protected speech” and states that the district “will not tolerate any form of hate speech and will consistently and vigorously seek to eliminate it,” both on and off school grounds. 

But here’s the problem: “Hate speech” has no legal meaning in the United States, and the term is often used to describe speech that is constitutionally protected. 

The policy does provide its own definition of “hate speech,” namely “any form of communication that attacks, threatens, degrades, or insults a person or group based on their race, color, national origin, ancestry, creed, age, gender, disability, sexual orientation, gender variance, or any other group.” But as ��ݮ��ƵAPP���� explained in a Monday letter to the school board, that vague and subjective definition violates the First Amendment. 

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The Supreme Court recently reaffirmed that “America’s public schools are the nurseries of democracy.” That means they have an interest in protecting students’ freedom to express themselves, and that “protection must include the protection of unpopular ideas, for popular ideas have less need for protection.” 

To be sure, K-12 students’ First Amendment rights are somewhat diminished when they’re at school because of the need to maintain order and discipline. But school officials don’t have carte blanche to ban whatever speech they personally think is offensive or inappropriate. Rather, they can restrict student speech only in limited circumstances, such as when it would substantially disrupt the learning environment. As the Court long ago explained, schools cannot suppress speech out of “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

The broad and unclear contours of Baraboo’s Anti-Hate Speech policy defy these principles. Is it “hate speech” for a student to argue that Joe Biden and Donald Trump are too old to be president because it “attacks” or “degrades” a person based on their age? Our letter supplies more examples:

Some may think a student expressing support for Israel’s invasion of Gaza is insulting or degrading to Palestinians, while others may think speech accusing Israel of perpetrating a genocide or intentionally killing Palestinian is false and degrading to Israelis. The same is true of other hot-button political issues. Some may argue transgender athletes competing in women’s or girls’ sports is a civil rights issue and attacks or degrades women and girls, while others may argue that excluding transgender athletes is transphobic. 

Absent evidence of substantial disruption, the First Amendment protects students’ expression of controversial opinions like these.

FIRE has seen similar censorship play out on college campuses for decades. Administrators frequently restrict protected speech based on a subjective judgment that it’s hateful or discriminatory. Emerson College suspended a student group for “bias-related behavior” for passing out stickers that read “CHINA KINDA SUS,” even though the stickers were critical of the Chinese government, not Chinese people. Hamline University fired an art history instructor for showing a medieval painting of the Islamic prophet Muhammad in class — an act administrators  �����������DZ��Dz�����.”&�Բ�����;The list goes on.

The Anti-Hate Speech policy does exempt “educational materials or lessons that are used by the district or its staff in good faith,” though it specifically bans reading “slurs” aloud because the “idea of ‘a pass’ to say a slur because it is in a text, ignores the systemic pass that insulates some identities from degradation, which in return, reinforces the privilege of those groups.” If the policy is intended to ban “slurs” in all contexts, that also raises constitutional issues because slurs are not per se disruptive or malicious. Take, for example, an LGBTQ student advocating “queer” rights or a student mentioning “SlutWalk,” a  that combats sexual violence. 

Public schools aren’t 24/7 surveillance operations. Teachers and administrators supervise students during school hours, but when students leave school grounds, they’re under the authority of their parents, not government employees.

Although the confusing policy initially appears to impose a blanket ban on what it defines as “hate speech,” it later says that “[n]o student shall engage in hate speech,” on or off school property, “that endangers the property, health, or safety of others, causes a substantial disruption to the educational environment, or that collides with the rights of others.” Like “substantial disruption,” the “rights of others” language comes from the landmark Supreme Court student speech case Tinker v. Des Moines, but the Court has never clarified its precise scope. Most lower     it, however, have interpreted it narrowly, rejecting any argument that it applies to speech that merely offends some listener.

Even if Baraboo’s policy only applies to “hate speech” in these circumstances, it still raises constitutional issues — foremost among them being its regulation of off-campus speech with no connection to the school. 

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Public schools aren’t 24/7 surveillance operations. Teachers and administrators supervise students during school hours, but when students leave school grounds, they’re under the authority of their parents, not government employees. In holding that the First Amendment protected a high school student’s weekend Snapchat post, “Fuck school fuck softball fuck cheer fuck everything,” the Supreme Court made clear that schools “have a heavy burden to justify intervention” when it comes to student speech outside of school programs and activities.

But the Anti-Hate Speech policy would impermissibly grant the district general authority over off-campus speech that officials think “endangers” others’ property or safety or “collides with the rights of others,” even non-students.

Baraboo’s Anti-Hate Speech policy also threatens school employees’ expressive rights. While the district has broad discretion to control employees’ speech when they perform job duties like classroom teaching, they retain the right to speak as citizens on matters of public concern when off the clock. The district doesn’t have to tolerate such speech when it is so disruptive to the school’s operation that it outweighs the employee’s strong interest in speaking about public issues, but it can’t limit employee speech as strictly and ambiguously as this troubling policy would.

At its last meeting on Nov. 11, the school board tabled the policy. ��ݮ��ƵAPP���� will keep watching to ensure the board does not pass it in its current form.

FIRE defends the individual rights of all Americans to free speech and free thought — no matter their views. ��ݮ��ƵAPP����’s proven approach to advocacy has vindicated the rights of thousands of Americans through targeted media campaigns, correspondence with officials, open records requests, litigation, and other advocacy tactics. If you think your rights have been violated, submit your case to ��ݮ��ƵAPP���� today.