Nope–if that were what I meant, I’d not ban the shirt. Banning only makes sense if it’s intended, and described by the perp, as the communication of a threat.
When placed in a group dynamic I think **Left Hand of Dorkness’**s example makes a bit more sense.
The white kid lets it be known that he and a bunch of his friends are going to wear flag shirts and bully any brown kids they see on a specific day. Once that message is known throughout the school the wearing of the flag shirt becomes intimidating as it is communicating a potential threat and thus can be banned.
That’s it, with some clarification:
-I posted my comment in response to Robert’s claim that the flag could never be banned, not in response to the OP. Definitely my hypothetical’s facts differ from the OP.
-I wouldn’t ban flag t-shirts for everyone under such circumstances; rather I’d just ban them for the person who decided to use his shirt as a way to communicate a threat.
-Again, I would not offer any clothing restrictions for the target of bullying. Telling someone they can’t wear a particular shirt because wearing it might get them beat up is a whole nother kettle of fish.
OK, thanks for the clarification. I don’t agree, but at least it’s clear.
Regards,
Shodan
The thing is: I don’t think the vast majority of commentators believe that wearing an American flag confers immunity from school discipline, no matter what subsequent acts of violence or threatening violence the wearer may offer up.
But in the actual case under discussion, the Court approved the school’s ability to ban the American flag wearing even if those wearing the flag did nothing else, and there were credible threats of violence from others. That is the legally correct decision, consistent with Tinker.
But it also constitutes a Heckler’s Veto.
yes, it is consistent with the Tinker decision. But the situation is not really analogous, IMO. Tell me, would the same thinking apply to kids wearing gay pride t-shirts being sent home because another group of kids said they’d beast them up?
Am I right in thinking that the kids in Tinker could have been forbidden from wearing armbands if some other kids beat them up for wearing the arm bands?
Yes. Tinker explicitly said that its holding depended on the absence of
and that
I disagree. I don’t think that Tinker stands for the proposition of a heckler’s veto. The dicta that you rely on to support your position talking about disruption of the educational environment is not a necessary or a sufficient condition to ban speech. It merely stated that those threats were not present in the facts of that case. To whatever extent speech could be banned because of educational disruption was not decided in Tinker; it merely suggests that it could be banned because of disruption. However a fair reading of the dicta is that the disruption is one caused by the speaker or actions related to the speech.
So a future case that doesn’t misread Tinker would surely see that the interpretation the Ninth Circuit uses would ban all school speech simply by alleging threats from the opposition. Hell, if a kid was running for student council president and the school bully threatened to beat him up, could the school principal keep him from addressing the school when other candidates, whom the bully likes, are allowed to speak? That’s the absurd result that your reading of Tinker allows.
Then I disagree with Tinker. This analysis allows far too much of a heckler’s veto:
-Girls could be forbidden from wearing shorts if some boys claimed to be distracted.
-I could be forbidden from wearing a political button if someone started shouting at me for it.
I do think some student speech should be curtailed, but rather than use an “any old jerk” standard for who’s distracted by it, there should be some sort of “reasonable-for-an-adolescent” standard. If most kids can be around a particular sort of speech without being distracted by it, then it should be allowed.
So, for example, a swastika, or a Confederate flag (I know this is borderline, and remove it from the analysis if you really need to), or an obscene t-shirt are going to be pretty distracting to yer average normal teenager. An American flag (absent any sort of implicit threat), a black armband, or a political campaign button are not.
[QUOTE=Left Hand of Dorkness]
Then I disagree with Tinker. This analysis allows far too much of a heckler’s veto:
-Girls could be forbidden from wearing shorts if some boys claimed to be distracted.
-I could be forbidden from wearing a political button if someone started shouting at me for it.
[/QUOTE]
According to Justice Black’s dissent, the record in Tinker showed exactly those kinds of “disruption;” that is, there were vague threats of trouble and lots of “minds taken off of classwork,” and the like, and the Court found it was insufficient. In other words, if a case exactly like that came before the Court, it would be Tinker. Harlan also dissented on the grounds that the school seemed to have a good faith basis for banning the armbands - but again, that was a dissent. The majority found that having a good reason to ban speech isn’t enough.
[QUOTE=jtgain]
The dicta that you rely on to support your position talking about disruption of the educational environment is not a necessary or a sufficient condition to ban speech. It merely stated that those threats were not present in the facts of that case. To whatever extent speech could be banned because of educational disruption was not decided in Tinker; it merely suggests that it could be banned because of disruption. However a fair reading of the dicta is that the disruption is one caused by the speaker or actions related to the speech.
[/QUOTE]
It stated that those threats of disruption were not shown to be present and that a prohibition cannot be sustained in the absence of such a showing. I think that’s exactly the definition of a necessary condition.
At any rate, even your reading of the language would permit a prohibition under the facts in this case.
If I follow, vague threats of trouble can’t be acted on, but if someone actually causes trouble, free speech of other people can be curtailed? Is that right?
If someone causes trouble that amounts to a material and substantial interference with the administration of discipline in the school, yeah.
Specifically, I think there were some issues where kids said to the Tinker kids “we’ll get you after class” or something like that. That sort of thing isn’t substantial enough.
So the message is: if you want to keep unpopular political opinions out of your school, you can’t just limit yourself to threats, you gotta follow through. Once you throw that punch, the administration can back you up on keeping the unpopular ideas from the classroom.
That’s about the sum of it?
I’m not sure whether you think I’m missing the subtext or whether you’ve mistaken me for the Tinker court. Are you asking what I think the rationale is for that distinction?
Yes.
Yes.
I think Jimmy is explaining the decision, by the way, not endorsing it.
Totally–I’m clear that Jimmy’s just explaining it, not endorsing it. I never realized that this subtext was contained in Tinker, is all, and it’s kind of outrageous, and I want to be sure I’m not getting outraged because I misunderstand.
Is there much room for a future court to modify this implication, or would that be a break with tradition?
There’s always room – in fact, for instance, Tinker’s ruling was essentially set aside and replaced, in a slightly different context, by the rule of Hazelwood v. Kuhlmeier – but I don’t think there’s any money in betting on any further modification to bend the law back toward your way of thinking anytime soon. This might chagrin you further, but Tinker was received as a surprisingly massive win for students’ rights, and the schools took it as a big blow. The shape of the subsequent litigation has thus been that the protections afforded by Tinker have been trimmed here and brought in a bit there, as in Hazelwood.
While there are a substantial number of free speech advocates who don’t think students should have to check their constitutional rights at the schoolhouse door, there’s also a lot of sympathy for the perspective Harlan had, which was that
In other words, fuck 'em.
Speaking from experience, I’m convinced that most students, even the ones from the inner cities are smarter than what they show to a teacher, this is worse when they encounter a substitute teacher.
I agree with a principal that once told me that a high school diploma does tell future employers that a student entering the workforce at least learned to follow rules and authority.
I had to deal with students that boasted that they had free speech rights and therefore had the right to loudly interrupt when I was teaching other students…
No, that is being an scoundrel not a patriot, you are going to the principal’s office if you don’t wait quietly.
Really, schools need to have some space to deal with defiance of authority issues, regardless if is your precious the one that will get the suspension.
I absolutely agree. However, I think that students’ free speech rights need to be taken seriously–as Tinker does–and the heckler’s veto buried in Tinker deserves reconsideration. If a student is quietly and peacefully expressing a political view that would otherwise be all right, the violence or disruption of another student must not be the deciding factor in whether to censor the first student. Rather, the first student’s right to speak a particular opinion in a particular context must be decided independently of the actual actions of other students.