Weighing Precedent and Principle: The Tension Between Legal and Ethical Decisions

Colorado State University (CSU) recently made national headlines after a picture of four white CSU students wearing blackface was posted to a personal social media account. Amid heavy backlash from fellow students and community members, CSU addressed the societal outrage and public outcry.

Citing the students’ First Amendment rights, CSU ultimately concluded, “personal social media accounts are not under our jurisdiction.” Despite recognizing the photo’s “deliberate racism” and contribution to a “deeply hostile” campus environment, CSU decided the students would not receive punishment for posting or posing in the photo.

Legal precedent grounds this decision, as can be seen in the 1969 U.S. Supreme Court ruling of Tinker v. Des Moines Independent Community School District. The landmark case ruled that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In other words, it is illegal for school officials to “censor student speech unless it disrupted the educational process.”

In July, a federal appeals court ruled that President Trump could not block Twitter accounts that produced content critical of the Trump Administration. The case and subsequent ruling have large effects on the application of the First Amendment pertaining to social media speech, something not addressed, or even foreseen, in the 1969 ruling.

The recent decision by CSU officials to absolve the students of punishment wearing blackface is largely grounded in precedent established by the two court cases described above. While judges rely on past court decisions to steer current jurisdiction, such conclusions also aid school officials in navigating freedom of speech issues with students. The CSU case is multi-layered, tapping into generalized freedom of speech issues with students at public institutions and free speech in the era of social media.

At the heart of the issue lies the tension between ethics and legality of speech. CSU admits to negotiating the strain of ethical and legal responsibilities when coming to this decision. As stated, "This recent post runs counter to our principles of community, but it does not violate any CSU rule or regulation, and the First Amendment prohibits the university from taking any punitive action against those in the photo.”

First and foremost, the distinction between ethical and lawful must be made: I find just because something is legal, does not mean it is ethical. On the other hand, an action deemed ethical might not be legal. This, however, does not imply that all laws are unethical. The two terms, although both important, are not synonymous, and involve varying degrees of application and interpretation.

In this instance, CSU clearly wrestles with the decision not to punish the students, basing justification on legal terms rather than ethical principles. This very tension is at the forefront of constitutional debate and happens to be the very reason why I declined a law school admission. I couldn’t seem to come to grips with the fact that legal does not always mean ethical. Upon reflection, though, I am not sure finding peace in this matter is a pre-requisite of lawyers.

Public outcry pressured CSU to address the blackface photo posted to social media, creating a form of community censorship. Upon review, the students were legally protected by the First Amendment and previous court rulings and interpretations of the constitution.

Although many are morally dissatisfied with CSU’s decision, it is grounded in legal precedent. Such tensions consume almost all legal decisions and should be considered accordingly when analyzing a rationale.