First Amendment Exception for “Racially Hostile or Contemptuous Speech” — Including Display of the Confederate Flag — in K-12 Public Schools?

So a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva held, arguing that:

A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions -EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.

Under Tinker v. Des Moines Indep. School. Dist (1969), all student speech — whether racially offensive or not — could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.

I think this is wrong, for the reasons I gave when criticizing a similar Ninth Circuit panel majority opinion about anti-gay speech. (My summary of my argument was that the decision “is a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.”) Nor do I think that Morse v. Frederick, despite its flaws, authorizes such restrictions; see here for an extended discussion, but the short summary is that both the majority and the Alito/Kennedy concurrence specifically limited Morse to speech that did not express a “political … message”:

[From the majority:] Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

[From the Alito/Kennedy concurrence:] I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

And the wearing of a confederate flag does send a political message, and certainly a comment on a “political or social issue” — whether the message is that the Confederacy was right to secede, that the South should be proud of its Confederate heritage, or that white supremacy is a good idea. The intended and likely understood message may vary from context to context, but the message remains political.

Fortunately, there’s a petition for rehearing en banc pending before the Sixth Circuit, and I hope the court does agree to rehear the case en banc. For more on the legal arguments in favor of rehearing, see the national ACLU’s and the Tennessee ACLU’s amici curiae brief in support of rehearing, which strikes me as quite correct. (My one quibble is that I’m not positive that Justice Alito’s concurrence is necessarily the “controlling opinion” in Morse for Marks v. United States purposes), but I think that Chief Justice Roberts’ majority opinion is consistent with Justice Alito’s concurrence on this point, and the concurrence certainly should be seen as important to understanding that majority opinion.) See also this op-ed by lawyers for the national ACLU and the Tennessee ACLU.

Note, by the way, that the majority opinion in the Sixth Circuit case is the one that is labeled a concurrence by two judges. As the ostensible panel opinion says, “To the extent that there are any differences between this opinion and the concurring opinion, the concurring opinion shall govern as stating the panel’s majority position.” My criticisms are of this concurring opinion.