A three-judge panel of the Ninth U.S. Circuit Court of Appeals may have been on solid legal ground when they agreed that school officials in Morgan Hill, Calif., could bar students from wearing U.S. flag T-shirts on Cinco de Mayo to prevent ethnic violence from students of Mexican ancestry, but their decision raises troubling concerns about threatening such violence as a means of suppressing free expression.
A 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, affirmed school officials' authority to restrict the free expression of students if that expression would cause “material and substantial disruption of school activities or invasion of the rights of other students.” Thursday's opinion by Judge M. Margaret McKeown, a Clinton nominee, notes that officials at Live Oak High School had reasonable fear of such disruption.
|The court's ruling amounts in practice to an endorsement of the 'heckler's veto' â€" using violence or the threat of it to suppress speech.|
But the court's ruling amounts in practice to an endorsement of the "heckler's veto" -- using violence, or the threat of it, to suppress speech. And by acting to suppress the First Amendment rights of the students who chose to display their own country's flag, school officials missed an important opportunity to teach valuable lessons about freedom, community and, above all, tolerance.
According to the facts of the case cited in the Ninth Circuit's decision, students of Mexican heritage made profane threats against other students wearing U.S. flags on Cinco de Mayo in 2009, and referred to the display of the U.S. flag as "racist." The threats of violence the following year that led to students being barred from wearing such apparel stemmed from that perception as well.
Why didn't school officials challenge that false perception? Isn't it their job to teach facts -- including the fact that the flag of the United States belongs to all Americans of all ethnicities? Perhaps the school should schedule a visit from one of the many Mexican-American service members who have fought under their nation's flag in Iraq and Afghanistan over the past 12 and a half years so the students can hear what it means to them.
And further, why didn't school officials take action against those making the threats? Violent suppression of free speech is not just intolerant, it's bullying. Isn't ending bullying supposed to be a major focus of educators these days?
As Eugene Volokh, a University of California, Los Angeles law professor and nationally recognized expert on the First Amendment, noted in a blog post on the case, "[B]ehavior 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?"
That's a question both the court and the local school district needs to answer, and quickly. If they don't, education will become a distant memory in public schools.