Home » News » Student’s racial slur has no First Amendment protection, federal judge rules

By David L. Hudson Jr., published on May 31, 2022

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A former high school student in California who was forbidden to walk at his graduation because of an online racial slur has lost his First Amendment claim in federal district court. The court granted summary judgment to the school district, finding that the student had invaded or interfered with the rights of another student.


Andy E. Castro, a former Clovis High School student, graduated in 2019 but was not permitted to walk at his May 30, 2019, graduation, because school officials disciplined him for a tweet containing a racial slur. Castro posted the n-word underneath the picture of an African-American student. Castro posted the tweet while on campus and during school hours.


Another student saw the tweet, was greatly upset by it, and reported it to the principal, Stephanie Hanks. The principal called Castro and his parents to her office, gave Castro his diploma but said he could not walk at graduation because of his online behavior.


Castro sued, alleging a violation of his free-speech rights. School officials countered that Castro’s speech was not protected under the U.S. Supreme Court’s standards set out in the landmark student-speech case Tinker v. Des Moines Independent Community School District (1969).


There are two main standards from the Tinker decision: (1) the substantial disruption standard; and (2) the interference with the rights of others standard. School officials do not violate the First Amendment if they can reasonably forecast that the student speech will cause a substantial disruption of school activities.


U.S. District Judge Dale A. Drodz first addressed this standard. “The evidence presented by defendants here in moving for summary judgment fails to establish that plaintiff’s actions posed a substantial threat of causing a disruption at Clovis High School’s graduation ceremony,” Drodz wrote. The court emphasized that the “only evidence” presented was a school official’s declaration that the tweet would cause a disruption.


However, the court still granted summary judgment to school officials based on the invasion of the rights of others part of Tinker, the lesser-used test. The court reasoned that the racial slur invaded the rights of African-American students, including the student who was labeled with the slur.


“Specifically, the evidence before the court on summary judgment established that another African-American student texted Principal Hanks and explained how the offensive tweets had directly impacted her,” Drodz wrote in Castro v. Clovis Unified School District


Drodz added that the case was a “close one.” He noted that the U.S. Supreme Court had protected a student’s profane SnapChat rant in Mahanoy School District v. B.L. (2022). However, he emphasized that Castro posted the tweet while on campus, while the student in Mahanoy had made the post off-campus.


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).




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