Monday, November 28, 2016

First Amendment scholars question KU’s immediate discipline of cheerleaders connected to ‘Kkk go trump’ social media post

On Monday, the four spirit squad members remained suspended from performing with the squad

This screenshot shows a message sent out on the Snapchat account of a University of Kansas cheerleader. KU officials have suspended that cheerleader, a female student, as well as the three men in the photo, who are also cheerleaders. This screenshot has been brightened to show additional detail.

This screenshot shows a message sent out on the Snapchat account of a University of Kansas cheerleader. KU officials have suspended that cheerleader, a female student, as well as the three men in the photo, who are also cheerleaders. This screenshot has been brightened to show additional detail.


Constitutional law experts say the University of Kansas may have acted too quickly in publicly disciplining four cheerleaders linked to a social media post that some people interpreted as racist.

“This is a classic example of ready, fire, aim — they punished these kids before they had any evidence,” said Mark Johnson, a partner at Dentons Kansas City, Mo., law firm and adjunct faculty member who teaches a first amendment class for the KU schools of law and journalism. “Regardless of the results of the investigations, these kids have been convicted in the public already. I mean, it’s all over the country.”

Media outlets nationwide shared reports last week after KU Athletics suspended four cheerleaders from performing with the squad pending further investigation of a photo posted on one cheerleader’s Snapchat account.


This screenshot shows a message sent out on the Snapchat account of a University of Kansas cheerleader. KU officials have suspended that cheerleader, a female student, as well as the three men in the photo, who are also cheerleaders. This screenshot has been brightened to show additional detail.

KU Athletics and KU announced that cheerleader’s suspension on their official Twitter accounts within hours of learning of the Snapchat post, and announced the other three suspensions on Twitter the following day. Lili Gagin said on her own Twitter account and told KU Athletics officials that she did not post the photo on her Snapchat account, that someone else took her phone and did it. She did not respond to a message from the Journal-World.

On Monday, the first day of classes after Thanksgiving break, all four cheerleaders remained suspended, said Jim Marchiony, KU associate athletic director for public affairs.

KU’s Office of Student Affairs is investigating to determine if a violation of the student code occurred, university spokeswoman Erinn Barcomb-Peterson said. She said she could not comment on the status of the investigation.

The photo shows three of the suspended cheerleaders, all white males, standing side-by-side in sweaters with the letter “K” for Kansas on the front; the so-called KU ugly holiday sweaters featuring Jayhawks on the arms and championship rings around the middle were sold en masse in the KU Bookstore last December. The photo was posted with the text “Kkk go trump” on the Snapchat account of the first suspended cheerleader, Gagin, a white female.

The Snapchat message was posted during a party Nov. 19, and KU Athletics learned of it via Twitter Nov. 21 during a KU men’s basketball game.

KU has not formally released any of the cheerleaders’ names. But before the end of the game, KU Athletics tweeted, “Unacceptable. She is suspended from cheering pending formal investigation.” along with an image of tweets by another user naming the cheerleader and complaining about the Snapchat photo. KU retweeted, adding the message, “There is no place for this in our community. These types of messages are unacceptable.”

Barcomb-Peterson said this week that those tweets were posted “to send an immediate response.”

“It was getting a lot of attention,” she said. “KU just wanted to be proactive to try get the statements across.”

KU Athletics and KU deleted those tweets the following day, and shared a new tweet stating four “individuals referenced in the recent Snapchat incident are suspended from performing.”

“We have removed our original post regarding the situation because it did not contain the context necessary to appropriately identify the individual who had been suspended from Spirit Squad activities,” KU Athletics said, in a Nov. 22 Facebook post.

Bill Rich, a Washburn University School of Law Constitutional law professor, said there are gray areas in First Amendment protections on university campuses and social media, as the U.S. Supreme Court has not given much guidance in those contexts.

Generally, speech by public employees acting as private citizens is protected, he said. However, when they engage in speech that creates a hostile working environment for others, that is cause for the government to limit their speech activity.

“Where exactly students fit in that relationship is not clear,” Rich said, adding that athletes or spirit squad members may be considered differently from other students. “Higher obligations might well be imposed on those people who are in a position of representing a university.”

Social media can make things even more muddy, he said, because it’s hard to draw a line between what someone is saying as a private citizen versus part of a school community.

Johnson said more investigation is needed to answer questions like whether the photo was taken and posted off-campus or on, under what circumstances, whether it’s been cropped, who actually put it on Snapchat with the text, and why.

“What we don’t know is what we don’t know,” Johnson said. “I’m concerned about how KU Athletics approached this. They made the decision to suspend before they had nearly all of the facts.”

Johnson said there are both innocent and not-so-innocent possibilities. He said even racist speech is protected under the First Amendment, though hate speech may not be.

“The university’s rules rightfully prohibit speech that’s directed at individuals and has the imminent threat of inciting physical violence,” Johnson said. “That’s sticking your nose in somebody’s face and using a racist term to them. This is not that ... If it was intended to be racist, I’m not even sure that it violates the university’s policy.”

Rich said the university is obligated by law to respond to incidents in a way that reduces the feeling that there is a hostile environment — limiting exposure by taking down bulletin board postings or removing graffiti might be one example.

Whether to discipline a student depends on facts, and the student should be given an opportunity to respond before judgment is made, Rich said. He said that doesn’t necessarily have to be an extremely formal process, “but when someone has been publicly dealt with, the opportunity for that person to clear his or her name becomes an additional factor.”

The outcome might differ if investigation determined the speech was intended as a political jab at President-elect Donald Trump, as some social media users have suggested, versus hateful speech indicating support for the Ku Klux Klan, as others contend.

“You can certainly say it’s a post that could be interpreted in a racist manner, but that doesn’t mean that was the intent of the person who posted it,” Rich said after viewing the Snapchat image. “You owe some kind of an obligation to the person who did the posting. It’s why there ought to be an investigation ... and people shouldn’t jump to conclusions one way or the other as to what the appropriate university response should be.”

Barcomb-Peterson said KU’s policy prohibiting racial and ethnic harassment addresses how the university balances freedom of expression and respect.

“This policy is not intended to infringe upon freedom of expression or academic freedom,” the policy states. “The University of Kansas, Lawrence, recognizes that such freedoms are fundamental to the educational process. This policy will be administered with respect for the necessity for the free exchange of ideas in the academic community.”


Aaron Paisley 2 years, 5 months ago

Freedom of speech does not equal freedom from consequences of exercising your righ to free speech.

This is something that created a lot of negative PR for KU and KU's actions seemed appropriate for the situation. If the cheerleaders version of the story is true and someone else took the picture and put the caption up without the cheerleaders knowledge, then reinstate them at that time. If guilty, they deserve to be kicked off the squad because they represent KU and are public figures and they would be fired from just about any other job for doing somethimg similar.

Micky Baker 2 years, 5 months ago

Who cares who put it up? It is obvious the picture without the little message didn't mean anything. It was some idiot pretending to be a comedian. They need to do an investigation to find out and reinstate the cheerleaders PERIOD! Then they do an investigation. They didn't know anything about what it intentions are. So many immature selfish people jump to conclusions too fast, which should actually be something that KU shouldn't want as a student in the first place.

Douglas County is one of the very few counties in Kansas that voted for Hillary because so many people believe that Donald Trump supports the KKK despite his actions in the opposite. So when they do find out the truth, and if it is a student that put that on there because he/she wants to politicize it dishonestly, that student should be expelled even if that student thought that he/she was poking at Trump. They need to get over it.

Joe Ross 2 years, 5 months ago

Im not sure that the picture without the message didnt mean anything. Each of the guys in the photo is emphasizing the letter "K" with their hand gestures, as if it needs to be emphasized beyond the letter on their chests. With much respect, if we dont know what their intentions are, we cant jump to the conclusion that they didnt mean anything. You point out that Douglas Co. voted liberal. Okay. But that doesn't mean that everything done in Douglas Co. is an innocent gesture that is being blown out of proportion. We have to be careful in judging issues such as these.

Micky Baker 2 years, 5 months ago

K for Kansas, because they're cheer leaders Joe!

You're right, we have to be careful in judging the incident, but the University of Kansas was careful. They still don't know, and indications lead me to believe they aren't trying very hard to find out. The football team had just beaten Georgia to close out the mini-tourney in Kansas City. They were obviously pointing to K in reference to Kansas after the win. That's what school spirit is! Shame on those that aren't capable of comprehending the obvious.

Only because Kansas starts with a K is it a big deal, and that should make the administrators who jumped to the conclusions they did without an investigation feel very ashamed and embarrassed.

If this were something that had to do with bigotry in any way, you wouldn't have just heard about it now, and it wouldn't have taken the ugly sweaters(which by the way, there was an ugly sweater night at a KU game last year during the Christmas season). It's completely irresponsible how the university handled this. There have been real bigoted things occur like the BLM trying to silence a specific group on campus, no one in the media whined then.

Micky Baker 2 years, 5 months ago

correction, first sentence in 2nd paragraph.

"You're right, we have to be careful in judging the incident, but the University of Kansas was not careful".

Joe Ross 2 years, 5 months ago

Plausible deniability should never be used to obscure common sense. This was intentional.

Micky Baker 2 years, 5 months ago

Joe, it was intentional. But you don't know who did it or why it was done. The University of Kansas doesn't know yet either, but they suspended the cheer leaders any way without knowing. PLAIN STUPIDITY by the university.

We know that they are cheer leaders and they cheer for the University of Kansas, thus they were wearing the ugly sweaters with the K's on them that stood for Kansas. We don't know they put the wording on the photo which would have to have been done in some sort of editing software. We don't know what the intention of the actual photo itself was, and they need to find out who put the words on it. Until then, the university is guilty of jumping to conclusions. They need to grow a spine.

John Brazelton 2 years, 5 months ago

Why didn't the University take the same actions when Black students (BLM) and their supporters were taking over parts of campus buildings demanding their one-sided demands? The Chancellor was shown attending their demonstrations giving tacit University approval to their sometimes illegal actions. Why are some students given a pass and others get punished based upon their skin color?

Joe Ross 2 years, 5 months ago

Complex subject that I dont feel is as straight-forward as you're making it.

For starters, I'm black. Surpriiiise! But I don't support the black lives matter movement. Not because black lives don't matter--they do. But the movement only seems to emphasize that the value in persons of color only matter when white people/police take them. When black people kill other black people, very little is said in the way of social commentary or with regard to black lives mattering then. This is a kind of hypocrisy that I can't marry myself to. Let's be honest though: cops--some of them--are dirty, and many of those are guilty of crimes themselves, some of which have racial implications.

Keeping that in mind, there are elements of the BLM movement that are worthy of audience. To say there isn't you'd have to be biased yourself. The only logically tenable position relative to the matter is that certain positions taken by those associated with BLM are worthy, while the movement itself is not. As a chancellor or any other person who approaches the subject objectively it is fair to listen to those grievances which are truly just, while rejecting those which are not. But there is nothing tacitly improper in listening to see what people have to say.

Now when considering students involved with depicting the "KKK", I apply the same standards to the KKK (as a group) as I do to BLM. I begin with the question of whether or not the KKK has any redeemable values. I can't think of any. Maybe you can. But as a GROUP, the KKK has historically been involved in lynchings, deaths, torture and the like with the approval of the group's leadership (if individuals acting autonomously within the group without the endorsement of the leadership were to commit such atrocities, then you blame the individuals, and the group only to the extent which it fosters values which feed into an hostile psyche, but outside of that the group is excused). I can't think of an instance where BLM--as a group--has supported unjustifiable killings and the like. If I'm wrong you may educate me.

In any case, it's clear to me that there is no room to equate the KKK with BLM. The KKK as a group and elements of BLM are both rejected on the same basis of being racially biased. Nevertheless, I am a Libertarian, and I accept freedom of speech even by those who use it frivolously. But clearly it's an error to say BLM = KKK.

Harlan Hobbs 2 years, 5 months ago

Because liberals are very selective when it comes to freedom of speech, John. If you toe the line, it's fine. However, if you deviate, it's hate. How's that for a little poetry.

Just more examples why I have rescinded all of my financial support to KU. I can find other educational opportunities more worthy of my support.

Joe Ross 2 years, 5 months ago

Indeed they are. And you are in a liberal setting on a university campus. It's one thing to recognize that liberals are biased; it's another matter, however, in answering the question of whether two groups promoting race are sufficiently alike as to consider both of them the same. One question has to be answered independently of the other, or we become biased ourselves.

Micky Baker 2 years, 5 months ago

Joe, the BLM protesters that raided the Republican group's on campus were only objecting to it because of the "privilege" the whites in the Republican group enjoyed, and that is bias and bigotry. It wasn't on the mainstream news, probably not even in the Lawrence Journal World, at least not displayed prominently and certainly not on the sports pages. It is extremely hypocritical of the BLM people who did that, who want a safe space where their views, and only their views can be tolerated, then to march in on a club that they weren't actually prohibited from joining, but chose not to because it was perceived to be "only white people in it". This is a big problem across the country on major university campuses, and some not-so major campuses. It happened at Missouri when a professor actually tried to assault someone videoing the Black Lives Matter protest and its highly divisive sort of rhetoric.

They chant, "No Justice, No Peace", even when it came to cases where the police officers were charged and put on trial.

It is also a problem that it is a "liberal setting" on a university campus which sort of cancels out any sort of critical thought processes that can occur due to the overt censorship of opposing views, even by professors. This has been done by at least one professor at Kansas.

College is when a transition occurs. That transition is when students challenge their own long held views and discover where they've been wrong or right and then develop a more complete picture of society. Having just a liberal setting is an obstruction to that.

Joe Ross 2 years, 5 months ago

Youre preaching to the choir. I appreciate your exhortations on the false narratives of the BLM movement but, as above, Ive noted that theyre a hypocritical group. Nevertheless, my argument stands.

Micky Baker 2 years, 5 months ago

The thing you're missing, not one single person from the BLM movement that did those things were suspended or expelled for that matter, and they should have been if this picture of cheer leaders led to a suspension. I believe a KU student was expelled for something earlier this school year for things not nearly as bigoted as what the BLM movement did.

Joe Ross 2 years, 5 months ago

I always love how people start responses by asserting their own moral or intellectual superiority. I am not missing anything. These cheerleaders and so on represent the University, they have codes of conduct they agree to abide with, and they risk reflecting poorly not just on themselves, but giving the appearance of racism at the University whether it exists there or not in reality. Youre doing a good job of mentioning why the response to BLM was "different", but youre failing to note the ways in which the cheerleaders' incident could be construed as more extreme. As such, you are presenting a perspective which is not an objective one, but colored with your own political biases. For example, the assumption that the "KKK" symbolism is lost on these guys? I mean really Micky? Come on, man! This ain't hard...

Micky Baker 2 years, 5 months ago

You did miss it. You see, the BLM issue made the news too. We already know that the cheerleader who owned the phone said she didn't do it. She said she put the phone down and someone did it on her phone, which is a plausible explanation. My perspective is not from the political correct(cover your ass) perspective like yours is. My perspective is that the 3 guys were wearing blue sweaters with crimson colored K's on them. They are the school colors(objective enough for you or not politically correct enough?) They are cheerleaders at Kansas(you know, the K's?, rational enough for you?). These sweaters were purchased at the KU Book Store.

You want to sit there and tell me about my biases Joe? There is nothing in your conclusion that doesn't derive from extreme bias on your part. Get a grip.

This is a quote from you response in the first thread of responses in this article.
"Im not sure that the picture without the message didnt mean anything. " Based on what Joe? Because "they're white"? That's extreme bias Joe!

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