Eugene Volokh comments on the case of the students sent home for wearing American flag shirts on Cinco de Mayo.
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If there is a reasonably predictable likelihood (not just a bare conjecture) that speech or expressive conduct will cause substantial disruption — which is not clear under these facts — then the school may legally restrict it without violating the First Amendment. That's the holding of Tinker v. Des Moines Indep. Community School Dist. (1969). (I speak here only of whether the district may legally do this, not whether it should.)
But California Education Code § 48950 deliberately gives students more protection than the First Amendment does. And the high school's actions, if they were reported accurately, would violate that statute...
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(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.
The "time, place, and manner regulations" restriction doesn't apply here, because the restriction here was justified with reference to the content of the expression (and the supposed harm that it might cause). Time, place, and manner regulations must be unrelated to content, and focused instead on matters such as noise, blockage of hallways, and other effects of speech that don't stem from the message that the speech communicates.
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