School leaders' decision to discipline Creston High School students who were pictured wearing Ku Klux Klan-type hoods beside what appears to be a burning cross may be overreaching, said Drake University Law Professor Mark Kende.

While the picture may be offensive, “this is a significant free speech issue,” said Kende, who specializes in constitutional law. “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.”

Under the Constitution, hate speech is legal and protected, Kende said.

In Iowa, hate speech does not rise to a criminal offense unless it’s specifically targeted, which doesn’t appear to be the case in Creston, Kende said. There are also no state-specific laws regarding burning torches or wearing certain garb.

“The school district’s going to have an issue,” Kende said. “The issue is complicated by the fact that the school is reaching beyond its typical school (borders) to penalize them.”

White hoods, Confederate flag: Iowa students disciplined after photo surfaces

However, the law get complicated when considering "school politics" and social media, Kende said.

For example, the disciplined students may have been required to sign documents to join extracurricular activities stating they won’t engage in certain behavior, Kende said.

He also said there may be more to the story than the image spreading around social media. He said there may be coded messages in the images the general public are unaware of, but school officials recognize.

"Is there a message that’s not explicit? If that message is clear enough, does it rise to the level of intimidation or threat?" Kende said. "From what I’ve heard so far, the answer doesn’t seem like it does, but the way schools work, there’s so much inside politics and inside turmoil within a school ... so there may be more to the story, but in general, people are allowed to engage in this country in this offensive speech."

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The image also shows the students pictured alongside a firearm and a burning object. While these elements enhance the offensiveness of the image, they are still protected a free speech as long as nobody is targeted with the offensive speech, Kende said.

"It very well could be viewed, for lack of a better phrase, (as) really, really offensive racist free speech," Kende said.