High school extracurricular activities are a privilege, not a right

A few words about the five Creston High School students who got in trouble over a picture showing them dressed up like Ku Klux Klan members, burning something like a cross and waving a Confederate flag.

The school district is not confirming details of the disciplinary action, rumored to be a suspension from the football team. Drake University constitutional law professor Mark Kende told the Des Moines Register that the school’s action presents a “significant free speech issue,” because “if they’re off school grounds and they’re doing it in their free time and they’re not targeting someone in school … then this is a form of expressive speech.”

As a card-carrying member of the ACLU, I agree. But here’s the thing: playing on a football team is not a constitutional right. Extracurricular activities are a privilege, conditional on not engaging in behavior that reflects badly on the school. The School Administrators of Iowa’s website provides sample handbook language on “good conduct” codes for extracurriculars. I enclose below excerpts from that page, including citations of nine court cases and ten Iowa State Board of Education cases supporting a school’s ability to discipline for “activities which are illegal, immoral, or unhealthy.”

Another important point: while hateful, offensive speech is protected, those who choose to engage in vile racist expression should be prepared for consequences like social stigma and widespread condemnation, even by some of their football teammates. Here’s hoping these “cowards and scum” (in the words of Creston native Trey Cheers, who first posted the picture on Twitter) will have trouble finding dates for the rest of their high school years. What teenager wants to be associated a guy whose disgusting KKK wannabe stunt was all over the news?

Final note: in social media discussions of this episode, I’ve seen many comments along the lines of, “they must have learned to hate from their parents.” We don’t know whether some or all of the offending students grew up in racist households, or whether they made bad choices under the influence of peers. They should be held accountable for their actions, but blaming the parents is not justified without a lot more information. Those parents may be as mortified as the family that disowned one of the Charlottesville neo-Nazis.

UPDATE: A reader notes that the Creston Community School District student code of conduct allows for discipline including “removal from the classroom, detention, suspension, probation, and expulsion.”

Kaleb Carter of the Creston News Advertiser reported on September 7, “The News Advertiser confirmed reports circulating on social media that each of the five players were Panther football players. Each has been removed from the team, per head coach Brian Morrison.”

SECOND UPDATE: At least one set of parents were troubled enough by their son’s conduct to release a public apology. Jamie and Megan Travis submitted a statement to the Creston News Advertiser asking for “forgiveness” and “peaceful resolution.”

On behalf of the Travis Family, we sincerely apologize for the hurt and strife we have caused this community. We do not condone the behavior that was expressed in the recent photo that was disseminated throughout various media sources.

We understand that our son has conducted himself in a way that is inappropriate and has caused disruption in the community. Our son recognizes his poor judgment and respectfully asks forgiveness from his classmates, the school and the community. The photo in no way reflects our family values. Our family strongly believes that all individuals are created equally in God’s eyes.

We support Mr. Messerole, Mr. Morrison, the school board and other school officials as they impose the appropriate punishments on our son, including removing him from the football team. Additionally, we support the school as they educate our son and his classmates in helping them understand cultural diversity. As a family we have also taken measures to ensure that our son understands his actions and how they affect others.

Our goal is a peaceful resolution. We want to move forward and embrace our community in eliminating racism in Creston.

Gary Dickey argues, “Pretty sure it’s unconstitutional for public actor to discipline someone because of their viewpoint–even though it’s deplorable,” and that any distinction between a privilege and a right would be “inconsequential.” He considers this incident comparable to Roosevelt High School in Des Moines kicking the Tinkers off the football team over wearing black armbands. A “better legal argument” for the school would be saying that wearing KKK hoods and burning a cross constitutes a threat or a disruption to cohesion on a multiracial football team. Though even then Dickey doubts the disciplinary action could survive “strict scrutiny.”

THIRD UPDATE: Some families may sue the school, Linh Ta reported for the Des Moines Register. The attorney who represents the school district released the following statement on September 8:

The Creston Community School District is committed to providing a positive and respectful learning environment for students. As an educational institution, we strive to promote civil discourse and tolerance for differing views. However, when there is a substantial disruption of or material interference with the learning environment, it is appropriate for the District to take responsive action. We are hopeful that everyone can learn from this situation as we continue working to provide our students the best educational opportunities we can.

The Register’s Kyle Munson profiled Kylan Smallwood, the African-American quarterback of the Creston/Orient-Macksburg football team.

“I would see that kind of stuff like Charlottesville and think that’s pretty messed up,” Smallwood said. “I never thought that would happen to our small town.

“I don’t want to be playing with kids like that.”

Smallwood’s coach, Brian Morrison, whom he deeply respects, kicked the five players off the football team.

“I thought these guys are my friends,” Smallwood said. “I’ve been to some of their houses before. I’ve talked to them.”

He wanted to ask the five why they posed for the photo. Smallwood hadn’t yet gotten that chance.

From the School Administrators of Iowa’s web page about sample handbook language on good conduct rules:


Participation in school activities is a privilege. School activities provide the benefits of promoting additional interests and abilities in the students during their school years and for a lifetime.

Students who participate in extracurricular activities serve as ambassadors of the school district throughout the calendar year, whether away from school or at school.

Students who wish to have the privilege of participating in extracurricular activities must conduct themselves in accordance with board policy and must refrain from activities which are illegal, immoral, or unhealthy.

Students who fail to abide by this policy and the administrative regulations supporting it may be subject to disciplinary measures. The principal shall keep records of violations of the good conduct rule.

It shall be the responsibility of the superintendent to adopt rules and regulations for school activities. Students wanting to participate in school activities must meet the requirements set out by the school district for participation in the activity. […]

Court cases:

Braesch v. DePasquala, 265 N.W.2d 842 (Neb. 1978).

Brands v. Sheldon Comm. Sch. Dist., 671 F.Supp. 627 (N.D. Ia. 1987).

Bunger v. Iowa High School Athletic Assn., 197 N.W.2d 555 (Ia. 1972).

Bush v. Dassel-Cokato Bd. of Educ., 745 F.Supp. 562 (D. Minn. 1990).

Clements v. Board of Educ., 478 N.E.2d 1209 (Ill. App. 1985).

Commonwealth v. Pennsylvania Interscholastic Ath. Assn., 334 A.2d 839 (Pa. 1975).

Katchak v. Glasgow Indep. Sch. Supt., 690 F.Supp. 580 (W.D. Ky. 1988).

Marino v. Waters, 220 So.2d 802 (La. App. 1969).

Sanders v. Louisiana High Sch. Athl. Assn., 242 So.2d 19 (La. App. 1970).

Iowa State Board of Education cases:

In re Jesse Bachman, 13 D.o.E. App. Dec. 363 (1996).

In re Bryan Campbell and Craig McClure, 9 D.o.E. App. Dec. 69 (1991).

In re Jason Clark, 1 D.P.I. App. Dec. 167 (1978).

In re Joseph Fuhrmeister, 5 D.o.E. App. Dec. 335 (1988).

In re Chris Gruhn (et al.), 9 D.o.E. App. Dec. 265 (1992).

In re Troy Hudson, 7 D.o.E. App. Dec. 144 (1989).

In re Heather Kramme, 13 D.o.E. App. Dec. 89 (1994).

In re Brett Lureman, 18 D.o.E. App. Dec. 265 (2000).

In re Ryan Oelmann, 18 D.o.E. App. Dec. 288 (2000).

In re Sharon Ortner, 16 D.o.E. App. Dec. 269 (1999).

  • This is who we are

    I commented this on the des moines register article, but I’ll repost it here:

    Hey Iowa: this is who we are. This is why Trump won our state. Before we deride or criticize the stupid racist fascist sexist clown that is our president, let’s realize that that is who we are. We put him there. Not in spite of his racism, fascism and mysogynism, but because of it. And these kids show it. This stain won’t wash, Iowa. We’ll have to work very, very hard to earn back our self-respect. It’ll take decades.

    To add to that, I recommend reading the Ta-Nehisi Coates article in The Atlantic magazine on Trump that is just out: https://www.theatlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/

    What particularly resonated with me, and is reflected in what is happening in Iowa, is that the election of Trump is an act of perverse sincerity, in the sense that some of us used to fool ourselves into believing was racism as a minor pathological part of our country that was slowly going away, but we know now it is an essential part of who we are. Not just in the South, but everywhere, very much including Iowa. We must start by confronting that. No news to any person of color, but with Trump the day of reckoning has come to all of us.

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