Kokomo Tribune; Kokomo, Indiana

Columns

March 27, 2014

JEFFREY McCALL: No consistency in school free-expression rulings

Courts could use new Supreme Court guidance

Public school administrators must have their heads spinning as they try to sort out recent court decisions regarding free-expression rights of students. Principals have the almost impossible task of balancing constitutionally protected student expression with keeping order in schools where education is the primary objective.

In a controversial ruling issued this winter by the 9th Circuit Court of Appeals, a three-judge panel ruled administrators in a northern California school district could legally prevent students from wearing American flag T-shirts on Cinco de Mayo, an important day for the school’s Mexican-American students. The judges sided with school officials who feared violence could be sparked by the display of American patriotism.

First Amendment legal scholar and UCLA law professor Eugene Volokh decried the decision because it allows those who would commit violence to silence the free expression of others. He called such threats a “heckler’s veto,” and called on courts to protect speakers and sanction those who would threaten violence.

Lawyers for the flag-wearing students have petitioned for the case to be reheard before an 11-judge panel of the 9th Circuit, but Volokh doubts the court will agree to rehear. In that event, the students could approach the Supreme Court as a last resort, but the odds of getting a hearing there are slim, too. Thus, this decision barring American flag shirts at school could well stand.

Interestingly, a federal court in Michigan ruled in 2003 the prospect of violence was not sufficient for school officials to sanction a student who wore a T-shirt labeling President Bush an “international terrorist.”

But even though high-schoolers in California can’t get constitutional protection to wear USA flag shirts, middle-school students in Easton, Pa., have earned court protection to wear “I [heart] Boobies!” bracelets. The 3rd Circuit Court sided with the students, writing the breast cancer awareness bracelets constituted students commenting on social issues. An attorney for the school district said in a published report the ruling leaves administrators with little guidance on how to control “aggressive double-entendres … in the guise of some social or political cause.” Perhaps the school could have won this case if somebody had threatened violence against a bracelet-wearing student.

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