Could Students Be Suspended for “Beat the Jew” Game

The AP reports:

Seven seniors at a Southern California high school were facing disciplinary action [including being suspended or barred from graduation] for participating in a game called “Beat the Jew” in which losers were subjected to “incineration” or “enslavement,” a school administrator said Friday.

The game involved some students playing the role of Nazis who blindfolded and dropped off other students playing Jews who must find their way back to the campus, said Sherry Johnstone, assistant superintendent of personnel for Desert Sands Unified School District….

“This is appalling to us,” she said. “We want our students to understand the horror of a title like this.” …

The game was promoted online, attracting about 40 students. Seven showed up to play one evening in the campus parking lot. Johnstone said.

(A USA Today story has more on the game.)

If the students were being disciplined for unsafe driving, or for trespassing on campus after hours — and disciplined in a way that would apply equally regardless of what they were saying at the time — then there’d be no problem here. But it seems pretty clear that the discipline is being contemplated precisely because of the expressive components of the game. Punishing students for those components, even of a car-based game, strikes me as no different than punishing students for the bumper stickers they have on their cars [UPDATE: or from punishing them for calling their football team or car chase team the "Redskins"].

So what’s the right First Analysis here? First, the students can’t be punished unless there’s good reason to think that their game is likely to lead to substantial disruption at school — not just distraction, but fights and the like. That’s the Tinker v. Des Moines Indep. Comm. School. Dist. (1969) principle, and while exceptions have been created to it over the years (most recently, in Morse v. Frederick (2007)), it seems to me that none of the exceptions apply here.

Second, there’s also the possibility that the speech is even more protected, regardless of its effects at school, because it occurred largely off school property (and because the party that occurred on school property happened outside school hours, and did not itself cause disruption on school property). The Supreme Court has never said whether Tinker is limited to speech at school, and whether school districts may not punish off-campus speech even when it causes on-campus disruption; and the lower courts are split on this. But in any event, some evidence of likely material on-campus disruption is the minimum that is required for discipline, and I’ve heard of no evidence of such disruption (again, such as fights or threatened fights) here.

Finally, a broader point: A “beat the Jew” game is pretty obviously in poor taste, and it’s possible that the people playing it were anti-Semitic. But it’s far from clear to me that they are. Kids can play “cowboys and Indians” without actually disliking Indians. Kids can play pirate games without actually endorsing piracy. People can play role-playing games without morally approving of the role being played. Wargamers can play Nazis in a World-War-II based war game without sympathizing with Nazi ideology. Civil War reenactors can play the Confederates without sympathizing with slavery. The historical value of some of this behavior, and the historical precedents for some of it, tend to make it considerably more socially tolerated than “beat the Jew” games, and rightly so. But the principle remains the same: Games aren’t real life, and one’s role in a game don’t necessarily reflect one’s views about morality in real life.

Now even if the kids are anti-Semites, anti-Semitic speech by students is constitutionally protected unless it seems likely to lead to material on-campus disruption (see Tinker). But my point is that the issue here isn’t just limited to anti-Semitic speech — the school district’s rationale for the punishment could in principle equally apply to “cowboys and Indians” games (including ones played outside school or outside school hours), Civil War games, and more. Our social condemnation of the students’ bad taste can be sensitive to distinctions between different kinds of such games. But First Amendment law, I think, is not (again, except insofar as the Tinker test, if that is the applicable test, is satisfied).

Thanks to Dan Salomon for the pointer.