Jeff Spitzer-Resnick: Baraboo School decision exposes First Amendment hypocrisy

“I am the boy captured in the photo to the far right. The photo was taken during our Junior Prom Photos. I clearly am uncomfortable with what was happening. I couldn’t leave the photo as it was taken within 5 seconds. The photographer took the photos telling us to “The Sign.” I knew what my morals were and it was not to salute something I firmly didn’t believe in. I attend BHS, these classmates have bullied me since entering middle school. I have struggled with it my entire life and nothing has changed. These are the boys of the 2019 Class. Nothing has been done and my question is, will anything ever be done? I truly and firmly believe we need to make a change to this horrible act. It needs to stop. Bullying, immaturity, and just taking things as a joke are unacceptable.” – Jordan Blue, November 12, 2018

Since the Baraboo prom Nazi salute photo went viral, many have wondered how the school administration would respond. While I have yet to receive a formal response to my Open Letter to Baraboo School Board, the school administrator recently announced that:

“because of students’ First Amendment rights, the district is not in a position to punish the students for their actions.”

Open Letter to Baraboo School Board

The prom photo showing most of the Baraboo High School male class of 2019 giving a Nazi salute went viral yesterday. It quickly traveled from social media to local news, national news, and even international news. There are certainly things to investigate, including why it took six months for this photo to become public; and why a Baraboo parent would apparently suggest that these boys throw up a Nazi salute and later make himself ridiculous by stating that he only asked them to wave to their parents.

Perhaps most important, though, is for the school district to find out why so many of its students do not have the critical thinking skills to refuse to obey a parent who asked them to throw up a Nazi salute, something so vile that it is outlawed in Germany and 10 other European nations. Of course, a close look at the photo, and a public statement by one of your brave students, Jordan Blue, shows that not all the students engaged in this vile show of anti-semitism and white nationalism.

I have a very unique perspective to address this issue. I am the President of my synagogue, Congregation Shaarei Shamayim (Gates of Heaven), and I am a civil rights attorney who specializes in education law and school discipline matters. As President of my synagogue, I have already reached out to offer support to the Huffaker family, who are members of our congregation, and have three children who attend Baraboo schools. They are one of very few Jewish families in your district and while they appreciate the support of many local residents who have offered it, they still await an appropriate response from the school district that addresses clear systemic issues of anti-semitism, white nationalism, implicit bias and failure to engage in critical thinking. It is very clear that this is not an isolated incident.

While the Baraboo School District certainly did not wish this viral problem on itself, in one sense it has a unique opportunity to address this problem in a healthy manner. Along with the Huffaker family, I urge the Baraboo School District to address this hateful incident through a restorative justice lens. The Huffakers informed me that the school district showed the movie Paper Tiger, a documentary about how a school district transformed how it dealt with adverse childhood experiences by moving away from punitive discipline approach.

While this incident calls for education, one showing of a good documentary is simply not enough. There are not many years left while Holocaust survivors who remember living through the horrors they survived can speak to your students, but though elderly, they are still available and willing to come to your school district to impress upon your children the horrors of the Holocaust and what the Nazi salute means to them. I would be glad to help if you need this assistance. The U.S. Holocaust Museum has published Guidelines for Teaching About the Holocaust and the Illinois Holocaust Museum is worth an annual field trip for all of your middle and high school students. It also has a speakers bureau you can contact to bring speakers to your school district.

Restorative justice repairs the harm caused by crime. Regardless of whether the police and prosecutors determine a crime was committed in this instance, this process can still apply when hate is broadcast so clearly. When victims, offenders and community members meet to decide how to do that, the results can be transformational. It emphasizes accountability, making amends, and uses facilitated meetings between victims, offenders, and other affected people to address the incident to help the parties move forward in a healthy manner. The Madison YWCA has a restorative justice program that works on school-to-prison pipeline issues that may be well suited to addressing this incident. Once again, if you need help setting up a restorative justice program to address this incident in your district, please contact me.

Your students also need to learn critical thinking skills so that when a hateful suggestion to raise their hands up in a Nazi salute is given to them, more of them are able to join the Jordan Blues of your school district and refuse to do so. Just imagine if most of the students who threw up the Nazi salute had refused to do so. Your school district would not be the spotlight of local, national, and international attention for this shameful act and your Jewish students and students of color would not have to look at their classmates and wonder how deeply ingrained Nazi ideology is in their minds.

In sum, in support of your Jewish students, the Huffakers, and others, as well as your other marginalized students who know that Nazism espoused both anti-semitism and white nationalism in their most deadly forms, I urge the Baraboo School District to seize this unwanted opportunity to do the right thing and transform its district from one that is now the subject of worldwide vilification, to a model of healing and support. Unfortunately, too many of our political leaders are giving safe space to vile forms of hatred like Nazi salutes, so your task is to teach your students how to stand up to such hate and to support marginalized members of your community instead.

Jeff Spitzer-Resnick, November 12, 2018

To be clear, in my Open Letter, I did not ask the Baraboo school board to punish these students. Rather, I urged the board to engage their students in Holocaust and white nationalism education, critical thinking, and restorative justice. While it is still my hope that the Baraboo school district will engage in these important educational practices, it is troubling that the school administrator is throwing a First Amendment shield around these students who engaged, whether intentionally or not, in clear hate speech when they raised their arms in a Nazi salute.

While students do have some level of First Amendment protection in school, that protection is not absolute. The National School Boards Association (NSBA) has published an excellent guide on this issue. As the NSBA guide states:

One court decided that a school district’s action banning a student from wearing clothing that displayed the Confederate flag at school was permissible. Citing examples of past racial incidents that had occurred in the school, the court concluded that school officials could have reasonably foreseen that allowing students to wear clothing that displayed the Confederate flag at school would materially and substantially disrupt the work and discipline of the school. In another case, a court ruled that administrators did not violate a student’s First Amendment right to freedom of speech when they prohibited him from expressing support for a friend accused of shooting a police officer, because of its potential to incite gang violence. In that case, the court explained that “past incidents of gang violence and increased tension caused by intimidation from gang members served as justification for the ban of a slogan clearly associated with a gang.” In yet another case, a court held that a school could regulate student speech if it had reason to think that the speech would lead to a decline in student test scores, an upsurge in truancy, or other symptoms of a sick school—symptoms, therefore, of substantial disruption.

As a colleague in Milwaukee, Lauren Avery Blumenthal, pointed out to me, many school districts specifically prohibit gang symbols. A few years ago, the Sheboygan Falls High School basketball team issued a one day suspension when this photo was published in the local newspaper because of the alleged flashing of gang symbols, though these students who are brothers denied they were flashing gang symbols.

Similar school discipline has been meted out in other school districts for flashing gang symbols. The hypocrisy is especially clear in light of the Baraboo School District’s explicit policy promising a “hostile free environment.” It remains exceedingly unclear how the Baraboo school district administrator’s decision to protect a Nazi salute under the First Amendment, conforms to her district’s policy to protect its students be “free from discrimination,” as the policy states.

While I do not know how the Baraboo School District would respond to students of color who flashed gang symbols, what I do know is that other school districts and educators have approached me to engage in Holocaust and white nationalism education, as well as critical thinking, and restorative justice training. In Indianapolis, a school principal promptly apologized when students raised their arms in a Nazi salute. The Baraboo School District can still do the right thing. Those of us who have offered to help the school district continue to wait for a more appropriate response than hiding behind an alleged First Amendment shield.