In a recent article it was reported that California District Judge James Ware ruled that it was constitutional for a school to order the removal of articles of clothing that depicted the U.S. flag on Cinco de Mayo, as there had been threats of violence. He stated that the schools decision did not interfere with Tinker v U.S. due to the presence of a threat of violence.

This suggests, to me at least, that Judge Ware does not understand Tinker. For the record, I would have sided, had I been in the lofty position of Supreme Court Judge, (an unlikely scenario to be sure), with the dissent in Tinker. Not even the dissent supports Judge Ware's ruling.

Tinker hinged on the idea that the school was banning a specific article of clothing which represented a single and specific idea. The court ruled, essentially, that the school was too narrow in the scope of its ban. They argued that the school could not stifle specific opinions, they did not rule that they couldn't stifle specific topics. The ruling can be read as an invitation to the school board to try something else, like banning all clothing with a political message. There are reasons to avoid certain conversations on school grounds, it is not an unlimited forum, free speech has, in fact, been curtailed. For instance, it is illegal for staff, faculty, and student to engage in proselytization or political activism during material learning times. (The courts have recognized that the discourse is important and can itself be educational, but that it may interfere with the mission, that is the education of students on a specific curriculum, therefore, this discourse must take place outside of the classroom.)

Again, specificity is the lever in Tinker, the scope of the ban is too narrow. In Ware's case students displaying one symbol were excluded. Other students, displaying the flag of Mexico were not similarly treated. This IS Tinker in a limited sense. (To my knowledge the question of due process was not raised in this case.) If the school is truly concerned then the correct action is to ban ALL symbols which demonstrate political or ethnic affiliation, whichever they want to call it. I want to stress that this is not an issue of patriotism where we should be outraged that these young people were not able to display their loyalty in their own country. The outrage is that they were unable to display affiliation at the same time others were allowed to. It is an issue of equal protection.

Discussion and opinions, please.