The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. 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.
Arguendo, lets suppose that this is true, that this isn’t a preposterous precedent, and that the 9th didn’t err. Well, what the hell does this say about the situation in the schools? As Volokh asks:
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?
No. It is most decidedly not. But who is surprised? This is the lesson that we have been teaching for years now — a lesson that has culminated in liberal arts students saying things like this with a straight face:
“What really bothered me is, the whole idea is that at a liberal arts college, we need to be hearing a diversity of opinion. I don’t think we should be tolerating [George’s] conservative views because that dominant culture embeds these deep inequalities in our society.
When I was still living in Oxford, the university’s debating society invited the loathsome white supremacist leader, Nick Griffin, to speak — a decision that I supported on the grounds that a) I thought it would be better to have such people addressing students on camera than being relegated to underground meetings, and that b) I thought that my fellow students were bright enough to resist the man’s ugly ideology. Predictably, my attitude wasn’t an especially popular one.
Walking to the building on one of the days before the event, I was met by a group of people in balaclavas. They were running around, shouting and screaming, and generally being intrusive. “These must be Griffin’s fascist supporters,” I thought to myself, naïvely? Nope. This was the anti-fascism league, trying to have the event canceled! For days, its members blocked the street, shouted at passers-by, complained in the media, and made a general nuisance of themselves, until, eventually, the board caved and the event was nixed. What was the lesson here? Well, that if you behave like a mob, you’ll get what you want.
This, remember, was in opposition to a fascist coming to speak. That we have got to the point at which this sort of heckler’s veto can get the country’s flag banned from its schools does not portend well.