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.
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.”