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.
Of course, 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 thought at the time of the panel opinion — and continue to think now — that 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 […]