Didn't Kevin say the "consequence" should be the diversity training? Not only is that not a true "consequence" but aren't people tired of racial and ethnic diversity and understanding being used as a "consequence"?

Could be.

I'm going to even walk back on that initial position I took there. I don't think the school should be able to punish these groups in any way, shape or form under the 1st Amendment.

Then, like I said before, I look forward to Halloween.

So if on MLK Day, the Kappa Tappa Kegga at a public school stages an event where they have a lynching of a straw man off campus where they wave the Confederate Flag while burning the lynched straw man in effigy, chanting racist slogans, clamoring for a return of Jim Crow, that would be more protected by the First Amendment than some kids showing up to Taco Tuesday in a sombrero or dressed like cholos?

I don't think I would totally buy that, it doesn't seem consistent. The reading of the First Amendment, especially these days with the Roberts court, tends to be very broad.

If I had a client with this sort of issue, I'd kind of like my chances in a 1983 case.

Quite possibly. I'd suggest that the former is precisely the sort of speech the First Amendment exists to protect. As to the latter—what were they trying to say exactly? Anything?

It's all going to depend on your judge(s), who likely won't be the Supremes. It might be covered speech, but I just don't consider it a slam dunk at all.

Yeah, they definitely won't be the judges.

I'd argue that they were trying to communicate that they were in character for Taco Tuesday. Tacos are Mexican food, so we'll dress like Mexicans and show everyone how into this we are. Clothing choice, especially extreme clothing choices are certainly a form of communication.

No, but the Roberts court's very broad interpretation of the 1st Amendment as of late is important and don't think the District Judges aren't paying attention to it.

And perhaps that argument would win. I'm just saying I don't think it's an open-and-shut case.

Paying attention, sure. But likewise, don't think there aren't quite a few district court (and circuit court) judges very willing to find ways to distinguish those Roberts Court cases from the cases before them. Again, not an open-and-shut case.