Virginia Bill Would Require Rules “for the Prevention of Inequities Involving the Use of Hate Speech or Ethnically or Racially Insensitive Expressions”

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§ 22.1-271.9. Interscholastic academic and inter-school athletic competitions.

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C. A registered official shall be appointed by an organization to provide services for the organization. This process will include a requirement to complete education and training that are consistent with training material developed pursuant to subsection.

It is not clear whether rules will be applied only to students, or if they would also apply to spectators. A prohibition on “hate speech” and “ethnically, racially sensitive expressions” by spectators (even if they were clearly stated by the “rules of standards” to avoid unconstitutional vagueness), would be considered a viewpoint-based restriction against private speech. The First Amendment does not allow for “hate speech”. However, it is telling that the Legislature seems to be unable to accept the vague concept of “hate Speech” and seeks to expand the ban to include “ethnically/racially sensitive expressions.”

The authority of public schools over the vulgarities expressed by students during school sponsored events would be greater (under Bethel School Dist. No. 3 v. Fraser) and over speech that disrupts the event (under Tinker v. Des Moines Indep. Comm. Dist.). However, I am unsure that any “racially or ethnically insensitive expressions” would be eligible; the definition of “hate speech”, however, would determine if it would. See, for example, the opinion of Judge Alito in Saxe v. State College Area School Dist. (3d Cir. (33d Cir.2001), striking down the speech code in public high schools. It is doubtful that private schools can be required to enforce viewpoint-based restrictions, regardless of whether they participate in competitions alongside public schools.

Hans Bader, for this tip.