But it is possible to make some deductions. Either they didn’t know what they were doing (which seems a failing of education), knew but meant the gesture as a joke (which would be inexcusably flippant), or knew and meant the gesture to convey its hateful meaning (which would be self-evidently awful). At any rate, if someone showed me their middle finger and told me they meant no disrespect, I probably wouldn’t believe them.
Still, those are moral objections, and as far as the law is concerned, Bowman says, what matters is whether a student’s speech would “materially and substantially interfere” with a school’s educational process. That was a standard set by the Supreme Court in 1969’s Tinker v. Des Moines, which upheld multiple Iowan high schoolers’ rights to wear black armbands to school in protest of the Vietnam War. What constitutes interference, though? “That is a great question, and honestly that is something that courts have been struggling with for decades as they have tried to apply the Tinker standard,” Bowman says.
Bowman adds that because students at public schools are “effectively a captive audience”—all states have laws that require kids to attend school, public or otherwise—schools have more license to shape the community environment, and thus more power to restrict speech, than the government might in contexts where attendance is not compulsory. For instance, the Supreme Court has ruled that a student can be punished for making statements that promote the use of illegal drugs.
Just where that line is when it comes to symbolic speech is something schools struggle with, too, and some have punished students for far less than an apparent Nazi salute. For example, four years ago, a Wisconsin high school suspended two black basketball players for one game after their hand signals in a photo were interpreted as gang signs, though the punishment was soon reversed. And last year, in the midst of the NFL protests against racial injustice, the superintendent of Bossier Parish Schools, a district in Louisiana, said that schools’ football “players and coaches should stand when our National Anthem is played in a show of respect”; a letter from one high-school principal explained that offending students could risk playing time or their spot on the roster. (A spokesperson for Bossier Parish Schools told me that the district issued its statement only after a reporter asked about its policy, not because any students actually kneeled.)
I asked Ross, given schools’ policies on all sorts of other matters (such as students’ clothing and appearance), whether a free-speech doctrine that permits a pre-prom Nazi salute to go unpunished is misguided; she responded with a firm no. “Public schools are not only bound by the Constitution, they have an obligation to teach students that constitutional rights are real, not a sham, not something from the days of the founders but for them too,” she wrote in an email. “This is how students can learn (under constructive faculty supervision) to exercise their rights as active citizens.” (Private schools, for the record, have more leeway to punish student speech because they are independent from the government.)