American public schools can prohibit students from wearing the American flag because anti-American thugs were likely going to silence those students with violence anyway:

“The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before”

If the situation had been reversed, and students attacked others who happened to wear a Mexican flag on Cinco de Mayo, would such a decision by the courts have been allowed to stand?

UCLA law professor, Eugene Volokh, finds this problematic:

“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?”

Ironically, in California, students have even greater free speech protections than the 1st Amendment provides.

Of course, in schools it seems that “some are more equal than others,” those who wish to indicate their patriotism are one of those who are not.



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