On November 8, a U.S. District Court in San Francisco upheld a public school’s decision to prohibit students from wearing American flag t-shirts on Cinco de Mayo. The Northern District of California ruling by Judge James Ware seems custom-designed to raise conservative hackles, and indeed it has already done so. By the following week, Fox News had featured the case’s plaintiffs on its morning program, and Ware’s ruling—characterized as “bizarre” by the students’ attorneys—has made its way into a number of conservative and libertarian blogs (including, of course, “Fox Nation”).

On a purely political level, the decision presents itself as an outrage of political correctness run amok—a new provocation from a court within the 9^th Circuit, the same body which sparked the “Under God” firestorm of the last decade. As a legal matter, the ruling is in keeping with courts’ increasingly deferential interpretations of the standards governing school regulation of student speech. Perhaps more so than other recent school speech cases, however, it helps illustrate one of the most problematic aspects of the Supreme Court’s dominant Tinker framework—the possibility that schools can engage in viewpoint discrimination or allow a “heckler’s veto” by suppressing unpopular viewpoints to avoid unpleasantness.

The case arose out of an incident at Live Oak High School in California’s Bay Area in May of 2010. At the school, where Mexican-American students now constitute a large portion of the student body, a tradition of informal celebrations of Cinco de Mayo has developed; students bring and display Mexican flags and other paraphernalia in celebration of the holiday. Live Oak has some history of gang activity and altercations between white and Latino students, and on Cinco de Mayo, 2009, verbal tension arose when a group of white students brought an American flag to school and started a “USA” chant. The principal reported hearing some Mexican-American students make verbal threats to the white students involved, but no actual violence occurred. Nonetheless, the school administration was aware of the history of tension and was especially sensitive to the possibility of disturbances when the holiday arrived in 2010. Three students who wore American flag t-shirts to school that day were sent to the principal’s office, where administrators asked them to turn the shirts inside out or change clothes. When they refused, they were sent home for the day.

In analyzing the students’ First Amendment claims, Judge Ware noted that the students’ speech—which was not obscene or otherwise objectionable in an absolute sense—nonetheless fell under schools’ power to limit student speech as laid down in the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District. According to the Tinker standard, public school officials may limit students’ otherwise constitutional speech, but only on the basis of “facts which might have reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” As Ware further noted, 9^th Circuit precedent makes it clear that officials need not wait for an actual disturbance or interference, but can act preemptively to forestall one.

Since school officials are entitled to some deference in determining the likelihood of a disturbance, Ware found that the documented history of ethnic tension at the school in general, and the fraught environment surrounding Cinco de Mayo celebrations in particular, justified the administrators’ cautionary measures. Furthermore, he noted that a number of circuits have concluded that the threat of racial or religious violence falls within the scope of “disturbances” as envisioned by Tinker. In a majority of cases in which courts have addressed the legality of school bans on student display of Confederate Flag paraphernalia, for instance, courts have sided against students’ free speech claims. When faced with student conduct that has the clear potential to exacerbate existing tensions or provoke racial enmity, Ware concluded, schools should be free to make a context-sensitive decision to prioritize the maintenance of a stable learning environment, even if free speech is considerably burdened. Otherwise, schools are “between the proverbial rock and hard place: either they allow disruption to occur, or they are guilty of a constitutional violation.”

Although it was rendered in a case whose facts are particularly sympathetic for the plaintiff students, there is no question that this decision is within the mainstream of courts’ increasingly deferential interpretations of the Tinker standard. Tinker itself, however, does not necessarily command such a government-friendly approach, and school speech jurisprudence is direly in need of tightening and clarification. It is possible to make a principled distinction between this situation—a school’s attempt to ban peaceful displays of an inoffensive symbol because of threats of violence—from past applications of the standard. First, the American flag is not itself a symbol of violence or racial hatred; though it may provoke hostile reactions in certain circumstances, it is almost axiomatic that an American public school administration would never be justified in finding the display of a symbol of national unity to be inconsistent with the school’s educational and socialization mission. Second, the students here were not the instigators, but rather the potential victims of, a violent disturbance; though schools must prioritize safety, there is good reason to believe they should be especially wary of sanctioning violence or intolerance of dissent by suppressing “unpopular” viewpoints—allowing students who threatened violence against the plaintiffs to exercise a “heckler’s veto” over the content of their speech.

Even though it remains the default standard, the Supreme Court has recognized that Tinker does not apply to every type of student speech. In Bethel School District No. 403 v. Fraser, the Court in 1986 distinguished Tinker and held that schools are broadly entitled to ban certain kinds of “vulgar and offensive” speech, regardless of whether it is necessary to do so to prevent a disturbance. In doing so, it stressed the importance of schools’ “communitarian” function in molding citizens of a pluralist democracy: “the fundamental values necessary to the maintenance of a democratic political system disfavor the use of terms of debate highly offensive or highly threatening to others.” Judge Ware implicitly constructed Fraser as banning only “obscene” school speech, but it can embrace a wider field of objectively offensive conduct, including racial provocations. The circuit courts entertaining challenges to Confederate flag bans have mixed Fraser and Tinker casually, but the unsuitability of the symbolism of the Confederate flag to a school whose mission is to inculcate tolerance played a role in many of the decisions. For example, the 11^th Circuit held that a student civil war history enthusiast could be banned from displaying the Confederate flag even if his subjective intentions in doing so were not offensive, arguing that was justified in giving great weight to its mission to “teach students of different races, creeds and colors to engage each other in civil terms” and that the flag had an unmistakably offensive meaning for most African-American students. Similarly, in the recent 9^th Circuit case of Harper v. Poway, the court referred to the language of Fraser in upholding a school’s decision to prevent students from wearing anti-gay t-shirts during the school’s unofficial gay rights observance. Though line-drawing problems exist with Fraser as with Tinker, it seems unobjectionable that schools, as custodians of impressionable children, should be entitled to prohibit certain types of obscene or hateful speech which would be permitted among adults. It is just as clear, however, that the Confederate flag or a t-shirt proclaiming “homosexuality is shameful” are objectively offensive and divisive in a way that the U.S. flag is not. Bringing a national flag to school on Cinco de Mayo may have been contrarian and childish, but it falls short of being objectively hateful or intimidating.

A more rigorous policing of the line between the Fraser and Tinker standards would reinforce schools’ claim to deference under Fraser when dealing with speech objectively incompatible with a positive school environment, while at the same time highlighting the extent to which imposing a content-based restriction on speech should be treated with caution under the Tinker standard. The rationale for such caution, of course, is rooted in the fundamentals of First Amendment and in the 14^th Amendment’s Equal Protection doctrine; as Judge Ware himself noted in his decision, it is a basic ground rule that “government may not grant the use of a forum to people whose views it finds acceptable, but deny it those wishing to express less favored or more controversial views.” Since students undeniably have First Amendment rights—albeit more limited ones—it makes sense that the same class of restrictions which would be especially disfavored in general should also be disfavored in the school contexts. And indeed, the Court has recognized this. In Tinker itself, it noted that review of schools’ decisions must ensure that a prohibition on speech “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Moreover, “the prohibition of expression of one particular opinion is not constitutionally permissible”—even in a school. As noted in an analysis of the large body of circuit cases on the Confederate flag issue, the modern courts’ deferential interpretation of Tinker creates a distinct danger of allowing schools to fall back on a “heckler’s veto” for the sake of convenience: the combination of Tinker and Fraser essentially gives schools a free pass, enabling them to invoke the most advantageous of either, or both, to justify their actions, thereby escaping a lawsuit.”

The possibility that the school has engaged in lazy viewpoint discrimination is of special concern here. Unlike in paradigm Tinker “substantial disruption” cases, the students engaged in speech here were not the instigators of the disturbance of school order which worried the administrators. Though their “provocation” in displaying American flags may have been the most proximate cause of a tense environment at the school, the groundwork for the tension was laid by the Mexican-American students’ own act of unsanctioned self expression. Where neither group of students have engaged in speech whose content is fundamentally incompatible with the schools’ communitarian and educational function—that is, outside of the Fraser zone—then school administrators’ first recourse should be to combat the disruption in a neutral way. Moreover, if the threats of violent behavior were really as one-sided as the record of the California case indicates, then the school would be better fulfilling its educational duty by restricting the speech of the potential aggressors rather than victims. Schools should, of course, have the option to sacrifice some student expression for the sake of preserving order if necessary; courts should be wary, however, of allowing schools to abdicate the very citizen-building mission on which their power to restrict speech is based by taking the easy way out and restricting only “unpopular” speech when there is no justification for such viewpoint discrimination. In this respect, at least, permissive interpretations of the Tinker standard are in danger of straying too far from the foundational case’s preliminary exhortation: that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”