That's why I care about the recent much-hyped-on-Fox incident at Live Oak High School in which students were (briefly) punished for wearing American flags on Cinco de Mayo. It doesn't worry me because it suggests an epidemic of anti-American sentiment. It worries me because it illuminates the slow death of student expression rights at the hands of both conservatives and liberals.
Think this represents merely a dumb spur-of-the-moment decision by a sole school administrator? Think again. The Morgan Hill Unified School District (correctly) threw the officials of the Live Oak High School under the bus, saying that the decision to punish the flag-wearers was a mistake. It's tempting to believe, as some have said, that this was an isolated decision by a rogue administrator. But, in fact, the trend to retreat from Tinker is driven by people who think that (1) people, and particularly students, have a protected right not to be offended, and (2) schools ought to employ censorship to defend that right, including by viewpoint-conscious punishment of speech. The circumstances of this incident are remarkably similar to those presented in the appalling Ninth Circuit decision Harper v. Poway Unified School District, penned — as are so many awful opinions — by Judge Stephen Reinhardt.
In Harper, a student was annoyed and offended by a Gay-Straight Alliance backed "Day of Silence" at his high school, intended to highlight discrimination against gays. Harper, who thought discrimination and hate against gays is swell, wore a shirt that said "Homosexuality is Shameful," with the obligatory cite to Romans. The school ultimately gave Harper the choice of removing his shirt or spending the day in the front office. Later, he sued for violation of his First Amendment rights. In upholding the district court's denial of a preliminary injunction, lacking strong evidence of actual disruption, Judge Reinhardt articulated a sweeping right not to be offended upon which school administrators may rely in censoring speech: "Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orien-tation, have a right to be free from such attacks while on school campuses." More importantly, and more appallingly, Reinhardt gave schools explicit permission to wield this power in a viewpoint-conscious manner, by censoring speech offensive to some groups but not speech offensive to others:
Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. . . . There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status.
The redoubtable Judge Kozinski penned a blazing dissent which is well worth reviewing. Fortunately, Harper was later dismissed as moot and is not citable or binding law. It is, however, a frightening testament to the fact that mainstream forces are arrayed in favor of censorship and against viewpoint neutrality. What happened in Morgan Hill is not an isolated incident, and does not represent an isolated sentiment.
You think stopping "disruption" is viewpoint-neutral? Think again. Proponents of giving schools broad post-Tinker authority to censor expression to prevent "disruption" argue that such power is viewpoint-neutral. We're not censoring viewpoints because we disagree with them, they argue — we're censoring them because they disrupt the school. But this episode demonstrates that preventing "disruption" is not viewpoint neutral, and actually gives schools broad discretion of which viewpoints to tolerate. Here, the school officials asserted that they could censor the boys' expression because it threatened disruption, because people expressing support for Cinco de Mayo on campus might react badly to the boys' expressing themselves via American flags. [I think that assumption is questionable and possibly even offensive to the Cinco de Mayo celebrants, but whatever.] But in doing so, they made a choice about which expression to censor. If Cinco de Mayo expressions on campus create an atmosphere in which [allegedly] dissenting expressions might be met with violence, then why not ban all Cinco de Mayo expressions as potentially disruptive instead? Would that not be an equally effective way of dealing with the potential for disruption? The reason is that the school officials supported the expression of Cinco de Mayo and not the [alleged] dissent from it — and therefore chose which potential disruption they wanted to censor. Again, this is similar to Harper — faced with dueling expressions, each offensive to the opposing side, the school picked sides. We might agree with the side picked, but the school ought not be in that business.
Why does it all matter? People who defend the slow erosion of Tinker, and the promotion of schools' discretion to restrict student speech, generally argue that it's unreasonable to expect schools to be public fora for speech, that students have plenty of other fora in which to speak, and that it's entirely reasonable to restrict student speech to achieve the goal of orderly and safe education. Surely they are right to the extent that some level of restriction of student speech and conduct is necessary to an orderly school. But I think that the emerging trend towards viewpoint-conscious censorship of student expression, and promotion of the right not to be offended, is a bad thing for society as a whole — and not only because students temporarily find their rights limited. For better or worse, schools play a crucial role in shaping social norms and attitudes. I believe that it is bad for America — bad for our collective concept of citizenship — for schools to teach children that it is a proper role of the state to protect them from offense and from upsetting or "disruptive" viewpoints. If kids absorb and accept that message, I shudder to think what sort of government action they will quietly accept — or even vigorously urge — as adults. If a kid is raised from kindergarten to believe that the state may — and ought — to protect her from offense, how can we expert her, as an adult, to accept the proposition that she must tolerate dissent? The censorious school is a crucible of a censorious society.
Finally, what's the deal with Cinco de Mayo? Whenever people criticize the celebration of Cinco de Mayo, celebrants and their defenders assure us that the holiday is not anti- or un-American — that it is, instead, an occasion for Americans to celebrate their cultural heritage, and thus entirely consistent with proud membership in America's pluralistic society. I accept this as a general proposition, as I do for, say, St. Patrick's Day. However, I think this incident shows that not all Cinco de Mayo celebrants would agree with the proposition. After all, if Cinco de Mayo is not un- or anti-American, then how could the display of an American flag on Cinco de Mayo be offensive, as some claim? Wouldn't it, under that theory, be perfectly consistent and harmonious? I think that the critics of the American flag-wearers inadvertently prove too much — they betray their belief that for at least some Cinco de Mayo celebrants, the day is infused with a sentiment of ethnic or nationalistic defiance of America which is contradicted, and threatened, by the display of an American flag. That's more than a little silly and ahistorical, given that Cinco de Mayo nominally celebrates the victory of Mexican nationalists, with the aid of America, over the French. But whatever.
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