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Originally Posted by Danzig
there is no way that particular case, which i also believe has no connection to what kagan wrote, will go to the supreme court. the school board disagreed with the principal on what he had done, and the kids returned to school. based on what action would this then proceed? the board couldn't fight a battle, as they already conceded the principal made a mistake. as for intent, you'd have to find where the principal created a rule in the first place. his intent was to discriminate, he failed. the law might have been to keep the peace, but the intent was incorrect. how is that hard to discern? how does a bozo high school principal bely what she wrote? or was your entire point to just bring up this particular case, and this was the only possible segue you could find?
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You are right that since the school board disagreed with the principal, this case is probably over. But what if they hadn't disagreed? Is that such a far fetch? I'm sure there are plenty of liberals that would have agreed with the principal.
I'm sure the principal would have said that his intent was to keep the peace, not to discriminate against the American students because he didn't like their message. The truth of the matter is, we don't really know what his intent was. It is certainly possible that the principal feared that the shirts would cause a fight and that he would have acted in the same way had the roles been reversed (Latino students wearing Mexican flags).
To answer your question as to whether this would be the only case that would be an example of why using "intent" would be a slippery-slope, I would say not at all. Any type of free speech case would apply. My fear would be that local governments and Courts would censor speech that they don't like and would claim that their intent was noble. Since it would be difficult if not impossible to ascertain their true intent, I think it's a very slippery slope.