How loopy has California become? This loopy:
Officials at a Northern California high school acted appropriately when they ordered students wearing American flag T-shirts to turn the garments inside out during the Mexican heritage celebration Cinco de Mayo, a federal appeals court ruled Thursday.
As a general rule, the eccentric and creative justices that populate the Ninth Circuit have an awful lot to answer for. But for once they may not be the villain of the piece. As the Washington Post’s Eugene Volokh has duly noted, there is precedent for such action, and that precedent holds that schools
have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.
“Discretion,” of course, is the operative word here. That the First Amendment has been repeatedly found not to apply in schools is disappointing for the plaintiffs and more than a little irritating for free-speech absolutists such as myself. But that a school has seen fit to force the question is infinitely worse. After all, the Ninth Circuit merely indicated what the state of California may do, and not what it should do — a critical distinction, and one that often gets lost in the noise.
The AP’s report recorded that the school board took its action because “administrators feared the American-flag shirts would enflame the passions of Latino students celebrating the Mexican holiday.” Perhaps take a moment and allow that sentence to roll around your mouth, all the while counting just how many seconds it takes for the bitter taste to burn and push at the back of your throat. An American school was faced with the possibility that some of its students would take violent exception to the nation’s flag, and, in response, the school banned . . . the nation’s flag. How, pray, is this possible?
Questions abound. Even if, contrary to all the evidence that has been presented, the problem was perceived to be that certain students were taunting others with Old Glory, shouldn’t those particular students’ behavior be corrected before their instrument itself was censored? (After all, if one child seeks to upset another, do we cut out all of the children’s tongues?)
And if flags themselves are deemed to be at fault, are we to take away from this example that Americans shouldn’t wear them in case they get attacked by barbarians? If so, one has to wonder by what metric we should determine that it is the American and not the foreign flag or holiday that has to go. Here, I can speak only for myself, but as an immigrant to this wonderful country I can assure you that I’d be utterly mortified were I in any way to provoke my new culture into removing or hiding its symbols and totems. Didn’t somebody involved think, “huh”? And, if not, didn’t someone in authority wonder whether it was wise to turn what was almost certainly a local altercation involving only a few bad eggs into a highly symbolic fight that may well be destined for the Supreme Court?
In even normal circumstances, the heckler’s veto serves as a menace to any free society. But in this area in particular, one has to wonder where the limiting principle lies. If silenced students have no recourse to the First Amendment, and if schools may take any action against freedom of expression if they deem it necessary to preserve the peace, then there is clearly no speech whatsoever that the schools are prohibited from restricting. One had better hope that the states employ teachers who are willing to punish disruption rather than speech. Offense is an intrinsically subjective thing and, as we have all learned in this era of constant outrage, almost everything is distressing to at least someone. How will we decide? Should a student be deeply vexed by the Declaration of Independence, would it be reasonable for the schools to remove it from the curriculum? If not, why not? What if the child of a white supremacist threatens violence in the event that Black History Month is observed? And should discussion of the Middle East be curtailed if it gets a touch rowdy in the classroom and looks as if it might devolve into aggression?
Once we have established that disruption is to be rewarded, there is really no logical endpoint to the ruse. Let’s try the AP’s report a few other ways. Perhaps:
Administrators feared the Martin Luther King buttons would enflame the passions of white students.
Administrators feared the sight of a female student without a veil would enflame the passions of Muslim students.
Administrators feared the serving of meat would enflame the passions of vegetarian students.
If your reaction to any of these is that it is more important to preserve liberty than to ensure harmony — or if you instinctively thought that in such cases the individuals responsible would be reprimanded before the things that we hold dear were compromised — then, in order to justify the school’s reaction, you must answer why the American flag does not get the same treatment. Especially when its Mexican equivalent and the Cinco de Mayo celebrations that it was flown to recognize were left wholly intact.
The role of government schools in a free society is a tricky question in and of itself. Particularly difficult is divining the point at which education becomes indoctrination and at which neutral civics takes the short and unhappy road toward propaganda. Presumably, though, we might all agree that if a public school system is to exist, it should attempt to serve as the means by which the essential premises of the nation into which its students will emerge are conveyed, and, too, by which new arrivals to the country are assimilated. Immigrant children, remember, are not required to take citizenship classes, and nor are the American-born offspring of recently arrived parents. The reasoning behind this is that young people will absorb as if by osmosis the culture to which they must adapt, and that while adults are required to hew to the strictures of the immigration authorities children will learn the details in school.
Well, not in this school they won’t. Not if the message is that the host culture is expendable and that violence and subjective notions of offense can be deployed to overturn the existing order. On Twitter yesterday, one fellow nailed it. “The real problem,” he wrote, “is that an elected school board in America banned American flag shirts and didn’t get immediately voted out of office.” Indeed. But that’s the thing with great societies: After a while, they become cocky and suicidal. Ultimately, whether the Ninth Circuit got the legal question right or wrong is mostly beside the point. The real trouble? That the question had to be asked at all.
— Charles C. W. Cooke is a staff writer at National Review.