Archive for 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.

November 28, 2016

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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.

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.”

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Comments

Clara Westphal 4 months, 3 weeks ago

If someone used the young lady's phone and was responsible for the posting, the KU athletic dept. owes her more than an apology. And, yes, I am an alum.

JM Andy 4 months, 3 weeks ago

That's her claim and a highly doubtful one considering everyone I know (and I work with students on campus) uses a lock code on their phone.

Sonny Burnett 4 months, 3 weeks ago

Wow. All 3 of your friends lock their phones.

Bob Forer 4 months, 3 weeks ago

Cell phones are like toothbrushes. Most folks will not share them with their best friends. '

JM Andy 4 months, 3 weeks ago

“Regardless of the results of the investigations, these kids have been convicted in the public already. I mean, it’s all over the country.” - Um, yeah, duh! Your very intelligent clients posted this tripe to SOCIAL MEDIA. No one's fault but their own. Don't want to be "convicted" in the public eye? Don't post racist crap on the Internet.

Randolf Fellows 4 months, 3 weeks ago

I'm going to have to agree with Mr. Johnson here, at least about the 3 male students pictured. No one has provided even the slightest evidence that they had any idea their posing for this picture would facilitate some sort of racially charged post on social media. Ms. Gagin, on the other hand, is responsible for the content of here social media feeds. So, a suspension of her, while investigations move forward, seems more supportable. If it turns out that there are indications she was not responsible for the post, I do hope the University is as vigorous and vocal in her defense as they are in convicting her now in the court of public opinion. Unless the University has substantial grounds to believe the male students fully understood and participated in this action, the University should apologize publicly to these students and reinstate them.

Nathan Anderson 4 months, 3 weeks ago

What if it's found that she is responsible, but the post was intended as satire? Still need to be suspended?

Randolf Fellows 4 months, 3 weeks ago

I think a slap on the wrist might be in order even if she meant it as an insult to Trump. The use of racially charged symbols in a contextually ambiguous manner is irresponsible on such a public forum. In her role as cheerleader, she represents the University and must be careful about her public comments. If she did mean it as satire, she has not gotten off to a great start in coming clean about it though. Her response has been complete denial of any involvement. That makes the whole satire angle a bit tricky. Either she posted it and meant it (and lied) or she posted it and was making fun of Trump (and lied) or she did not do it (and someone stole her phone, snapped the picture, posted it on her account and returned her phone without her having any idea what was happening).

Michael Bennett 4 months, 3 weeks ago

This photo just looks like a jab at Trump and some of his supporters, as the article mentions as a possibility. I'd be really surprised if it's anything but that, and I think the university went way overboard in its response in an attempt to avoid accusations of negligence. If that's the case, it'd be very disappointing that we've reached this point.

JM Andy 4 months, 3 weeks ago

How is "go Trump" a jab at Trump? Let the whitesplaining begin...

Amber Fraley 4 months, 3 weeks ago

If it's satire, then they really don't understand satire.

Bob Zielinski 4 months, 3 weeks ago

Is it 'whitesplaining' to point out these people have the right to take this picture and the right to speech that is not threatening anyone? Like it or not, whether it is a joke or not, protecting speech is not an endeavor of convenience or popularity.

Bob Forer 4 months, 3 weeks ago

Yes they have that right. But they don't have a right to represent the university. That is a privilege which is accompanied by reasonable restrictions on personal behavior.

Matt Agard 4 months, 3 weeks ago

You do have a Constitutional right to speak your mind, HOWEVER, you are NOT free from the consequences of your speech! This is where people get confused, there is NO jail time, but a suspension? Yes, I can agree with that, as the School has an image to upkeep! For example, I own a business, if I were to put political signs up, talk politics with my customers, I would have to deal with the fact that half the people I talk to don't agree, and I would risk losing those customers.

Harlan Hobbs 4 months, 3 weeks ago

Yes, Matt in theory. However, the left has a very selective method of defining freedom of speech. If you agree with them, whatever you say is fine, but if you don't, then you are hateful.

Just take the BLM folks who shouted epithets such as "Pigs in a blanket, fry them like bacon" or "What do we want - - dead cops. When do we want them, now!" Or, how about Obama referring to Congressional Republicans as "terrorists?" Or, what about the multitude of left wing agitators who tear up cities in protest of anything with which they disagree, etc. etc. etc.? Where are the consequences for them?

Once again, the "left" just doesn't get it. They'll be pouting for the next 8 years, and if they go ahead and select a black Muslim as the leader of the DNC, it will be a lot longer than that.

By the way, Bob, have you chartered your flight yet to Cuba, so that you can take advantage of their wonderful education and health systems? I doubt it, since there doesn't seem to be much of a need for criminal lawyers there. They probably have very speedy justice there, if you get my drift. I don't suppose they have eliminated the firing squads.

Bob Forer 4 months, 3 weeks ago

Harlan, I don't engage in intelligent conversations with folks who don't have the wherewithal to engage in intelligent conversation. Have you thought to spending more time playing Nintendo and less time blogging?

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