There’s plenty to the opinion handed down by the U.S. 9th Circuit Court of Appeals, in which judges found schools have the right to prevent students from wearing the American flag if officials reasonably suspect violence might result. The trigger was a ban on such clothing each May 5 after Mexican students threatened violence against their Caucasian classmates who came to school in American patriotic clothes on Cinco de Mayo 2009.
After acknowledging the roots of their decision trace logically to a 1969 case in which the Supreme Court first granted schools authority over problematic speech on campus, Eugene Volokh gets to the putrid heart of the ruling, in which the court appears to have validated – against First Amendment tradition – the “heckler’s veto,” in which “thugs threaten to attack the speaker, and government officials suppress the speech to prevent such violence.” But Tinker v. Des Moines Indep. Comm. School Dist. grants administrators latitude in keeping the campus peace.
Nonetheless, writes Volokh, there are deeper problems suggested here:
“The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.
“Yet even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
“And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”