Last week two high-school students in Maple Valley, Washington were suspended for wearing what is often referred to as the Confederate flag. Please do not take this as an invitation to drone on about the differences amongst various Confederate flags and battle-flags and so forth. Apparently they decided to wear the flags in response to a fellow student wearing a gay pride flag. A school district spokesperson defended the suspension, saying that wearing the flag is "disruptive." The Confederate flag, that is.
When I see a gay pride flag, I think about the arc of the moral universe bending towards justice. When I see a Confederate flag — any of them — I think about the Cornerstone Speech or the ratification of the Confederate constitution or the Confederate constitution itself or the statements of the grounds of secession by states like, say, Texas, all of which stand for the proposition that, at a minimum, the lead talking-point of the Confederacy was the inherent inferiority of certain human beings. It's popular in some circles to suggest that the Confederates who said those things were exaggerating or misstating the case, or otherwise to retcon the Confederacy. In a world where Ben Affleck can be Batman why can't the Confederacy be founded on a trade policy or something? Knock yourself out, I guess.
Do we want schools to be deciding what controversial symbols are acceptable, and what controversial symbols aren't? Some of us do, apparently. Over at the site "Americans Against the Tea Party," one Richard Rowe celebrates the suspensions and the school's power to choose amongst messages based on their content. Despite the location of the post, it has nothing to do with the Tea Party. Nevertheless I came in with an elitist coastal disdain for the Tea Party (for instance, thinking that it too easily adopts cheap and moronic anti-Obama tropes that undercut its small-government message, and that in an unprincipled fashion in fails to apply its small-government message to law enforcement and military and the surveillance state along with welfare and health care), and left vaguely and irrationally sympathetic to the Tea Party out of disgust for the post.
Rowe begins with an odd and only partially incoherent discussion of symbols, concluding that symbols can only mean what other people perceive them to mean and that the Confederate flag could not have symbolized Southern pride because the students were not in the South: "But it only represents that (when it does) IN THE SOUTH. Around other people who agree that that is its value as a symbol."
Moving on to his defense of content-based censorship, Rowe notes that the ACLU recently convinced a school district elsewhere to allow a student to wear an anti-gay shirt, and that the ACLU has objected to the suspension in Washington. Rowe undertakes to explain why the ACLU is wrong on the law. Rowe believes he is qualified to do so:
He has several projects in the works right now, including a series of books on driving, fuel economy and the future of the automobile, one on applying the principles of thermodynamics to global economics, a Taoist perspective on applying physics and mathematics to sprituality and religion, and another on the role of the Industrial Revolution in ending slavery.
Well then! Let's see how that works out for him.
Rowe offers what he apparently sees as a devastating critique of the proposition that high school students might have free speech rights to wear shirts others find offensive:
Ah, yes. The First Amendment. The amendment that protects free speech. What are the first five words of that amendment again?
“Congress shall make no law…”
What were the first and last words again? “Congress” and “law.” As a kid who wore an ankle-length, black trench-coat to high-school before, during and after Columbine, I’m pretty well-versed in this one.
A school board isn’t “congress,” and a venue-specific “policy” isn’t a “law.” Remember back in the day, when kids had to wear school uniforms? They didn’t have any say in the matter, and it wasn’t a violation of free speech. Because it was school policy, plain and simple. If you wanted your kid to go to that school, you obeyed school policy and sent them to school in a uniform. The same holds true today for gym class; kids regularly have to wear a certain color shirt and pants/shorts to gym class.
Anyone who has ever discussed free speech on the internet has encountered this argument. It's just that you expect it from twelve-year-olds and recent immigrants from Uzbekistan. Almost everyone else realizes that the First Amendment protects our right to speak freely not just from Congress, but from the states and their political subdivisions. This is not controversial. It's been the law since 1925. That's 88 years. Under the Incorporation Doctrine, American courts have recognized that the Fourteenth Amendment — which forbids states to "deprive any person of life, liberty, or property, without due process of law" — binds states to most of the Bill of Rights, specifically including the Rights in the First Amendment.1 Therefore the Supreme Court has repeatedly recognized that, while schools have significant freedom to suppress speech to maintain discipline, students still have First Amendment rights. In 1969 in Tinker v. Des Moins Independent Community School District, the Supreme Court found that students had the right to wear black armbands to protest the Vietnam War, despite the fact that the right-thinking people who ran the schools thought that was offensive and disruptive. The Supreme Court did not support Mr. Rowe's position that the First Amendment does not apply to schools or that policies are not "laws":
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
The Supreme Court also noted that there was no evidence that the armbands had caused actual disruption, and bluntly rejected the school's argument that the fear of potential disruption sufficed to justify the censorship:
The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness—that is 509*509 the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained.
Since Tinker the Supreme Court has become more deferential to school regulation of speech. But even the most deferential cases do not support Rowe's oddly ignorant parsing of the First Amendment. Quoth the Supreme Court in 2007, upholding discipline for a student who held a "Bong Hits 4 Jesus" sign:
Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969).
So. Are Tinker and the incorporation doctrine so obscure that Rowe could not be expected to know of them? Apparently not. Rowe goes on to argue:
The reality is that kids go to school to LEARN. School isn’t a place for distracting political statements…it’s a place for LEARNING. (Not that supposed Confederates would appreciate THAT particular metric of judgement.) That was the ruling laid out by the Tinker v. Des Moines judgement of 1969, which said this:
“…Although the Tinker decision recognized that students have free speech rights on campus, the court also held that your free-speech rights can be limited when the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” This rule is referred to as Tinker’s “material disruption” standard, or the Tinker test. For example, a school can “prohibit the use of vulgar and offensive terms in public discourse” while you are on campus.”
So, basically, the school only has to show that the thing in question “materially disrupts classwork,” and it’s gone. The school administration makes that decision, and may have to prove it later. But on the spot, the administration makes that call. Considering the fact that it was supported by the local community and parents, this was evidently the right one.
That's right. Rowe begins with a stupid First Amendment argument directly contradicted by Tinker, then turns around to quote Tinker for the one part he likes: that schools have some freedom to prevent disruption. He also manages to ignore the part of Tinker holding that a school may act based on actual disruption but not speculation about possible disruption.
Rowe ends by celebrating the heckler's veto, suggesting that schools should censor speech that offends some people:
Of course, by that standard, maybe the Gay Pride flag shouldn’t have been permitted either. If it distracted anyone from classwork or studies, then it should be gone, too. Great…school is for learning. But if nobody cared, then nobody cared. But did people care about a couple of yahoos carrying around a sign of hate and violence in “protest” (read: intimidation) of a person who’s part of a group historically victimized by bearers of that same flag?
Hell, yes, they did.
And that’s the end of this Flag Game.
And yet the stories about the Maple Valley incident don't support the assertion that the Confederate flags disrupted school; they support the conclusion that school administrators say the flag is inherently disruptive because of the message they conclude it stands for. I tend to conclude it stands for that same message, but that doesn't mean that I think the power to censor it without proof of actual disruption should be delegated to me or to school officials.
Rowe's column celebrates deference to school authorities. That celebration occurs in a particular context. The context is a nation in which school authorities strip-search a 13-year-old girl looking for ibuprofin. The context is a nation in which school officials suspend an autistic kid for drawing a cartoon bomb. The context is a nation in which school officials suspend an eight-year-old boy for making a gun with his finger while playing. The context is a nation in which school officials suspend seven-year-olds for biting their breakfast pastry into something resembling a gun. The context is a nation in which school officials suspend kids for wearing t-shirts supporting gay rights or supporting gay marriage or supporting the gay-straight alliance or supporting the NRA or criticizing the President about a war or protesting a school policy or opposing abortion or even for wearing shirts with the American flag on Cinco de Mayo.
Rowe asserts that school officials should make content-based value judgments about students' speech because some speech, like the Confederate flag, is an attack on traditionally despised groups. He frames the dispute as one between the pro-gay message the school permitted and the apparently anti-gay message intended by the suspended students. Rowe's premise is one that is as familiar as it is moronic: we can trust the government to use exceptions to free speech in a way that will benefit traditionally despised and powerless groups. A look at the links in my paragraph above, or a few minutes' research into modern student speech disputes, puts the lie to this: for every student suspended for a Confederate flag, there is a student suspended for a pro-gay message. This is not a mystery. This is the natural and probable and predictable consequence of conferring power to regulate speech upon the state. Exceptions to rights will naturally fall more heavily upon powerless and traditionally despised groups. Only fools believe otherwise.
I think the guys who reacted to the gay pride display with a Confederate flag display are assholes, and are celebrating values that make America worse. But ultimately Rowe's expression does more harm to the country than they do. They're celebrating bigotry, but they may grow out of it. Rowe's promoting ignorance about fundamental rights, censorship, and subservience to state actors. He probably won't.
Last 5 posts by Ken White
- Cracked Drunkenly Paws At Free Speech Theory Again - December 5th, 2016
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016