The way I see it is even if dumb jocks want to troll others IRL, they may inadvertently still be making a "political" statement. Even if we all think it's a stupid and possibly intended to be offensive, it's a school restricting speech based on content that can very easily be called "political." That coupled with the fact that their "statement" is basically wearing a flag--which is by any objective standard not patently offensive or prone to causing a disturbance, such as a Nazi flag or even a confederate flag.
Morse v. Frederick(the Bong Hits Case) made a narrow ruling in the universe of school speech, in my opinion, by upholding a school's right to limit speech based on legitimate "pedagogical concerns" such as drug use. The Court in Morse was careful to not explicitly overrule
Tinker as much as to just say that school's can restrict any speech that could be seen as promoting drugs, since obviously we don't want kids doing drugs in school. Here is a quote from
Morse:
The "special characteristics of the school environment," Tinker, 393 U.S., at 506, 89 S. Ct. 733, 21 L. Ed. 2d 731, and the governmental interest in stopping student drug abuse--reflected in the policies of Congress and myriad school boards, including JDHS--allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of "undifferentiated fear or apprehension of disturbance" or "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id., at 508, 509, 89 S. Ct. 733, 21 L. Ed. 2d 731. The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, App. 92-95; App. to Pet. [*409] for Cert. 53a, extends well beyond an abstract desire to avoid controversy.
In the next paragraph the Court is careful not to extend this rule. They outlines the Court's current understanding of
Fraser, another important and seminal case on 1st amendment rights in school. Fraser dealt with a "lewd" student speech that was censored by the school, and upheld:
Petitioners urge us to adopt the broader rule that Frederick's speech is proscribable because it is plainly "offensive" as that term is used in Fraser. See Reply Brief for Petitioners 14-15. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of "offensive." After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick's speech was offensive, but that it was reasonably viewed as promoting illegal drug use.
Drawing on the sort of "triumvirate" of cases we have on school speech:
Tinker, Fraser, and
Morse, the basic jurisprudence is: if it's clearly political speech we use the Tinker test and look for a chance of substantial disruption, because political speech is "at the core of what the First Amendment is designed to protect."(According to Roberts,and I agree with that sentiment). If it's not political speech, we use the Morse/Fraser tests; I think
Tinker is the applicable test here, barring some new facts coming to light I don't know about, and the school in Santa Cruz needs to really show some sort of evidence of a major disruption, and even then we're still in unusual territory because of the nature of the speech here, the
American Flag, is so unusual (from a disturbance causing perspective.)
I think that even a stupid political statement is a political statement. Mere offensiveness does not rise to the level of discipline and censorship, and even though schools should have wide leeway to maintain order, we also have to think about the values we are instilling in our students for when they grow up. Should we be censoring the American flag in school? Should nationalism be offending people? Should your own or my own personal displeasure with a political viewpoint mean it can be censored? No.
Let me be clear, I think these kids may have intended to get a rise out of others and been totally motivated by stupid jingoism and outright bullying. I can understand personally being offended by people shoving the flag in my face on a day celebrating my heritage (I'm not Mexican, speaking hypothetically) because I get the point they're trying to make. But I wouldn't want their speech censored or to have them disciplined for it. If all they actually, physically did was walk into school wearing an American flag, I would be pretty outraged if we could allow a school to discipline them for that. My opinion.
