The Ninth Circuit was right that the school district violated the First Amendment by punishing a student for holding, outside school property, a Bong Hits 4 Jesus banner.

But it was wrong to deny the school officials qualified immunity, since there is enough ambiguity under the Supreme Court’s and Ninth Circuit’s school free-speech decisions that a school official might not have known that such speech was protected in a K-12 school, and such a school officials would not be plainly incompetent in failing to predict that the Ninth Circuit would hold such speech protected.

When I say that the Ninth Circuit was right to find the speech protected, I mean under existing court decisions.

The Supreme Court, of course, isn’t bound by past court decisions, and there may be enough votes on the court to reverse the Ninth Circuit even on the question of whether the speech was protected at all.

If you add together the justices who have never been enthusiastic about the Tinker line of Supreme Court decisions, and justices who will be very offended by a flippant reference to drugs, and inclined to make an exception for drug-related speech, you might very well be able to cobble together a majority to reverse the Ninth Circuit’s decision on whether the speech was protected.

Ideally, though, the Supreme Court would reaffirm Tinker, and uphold the Ninth Circuit’s finding that the student’s speech was protected, but overturn its denial of qualified immunity to the school officials.

It’s worth noting that the Ninth Circuit’s decision wasn’t written by a liberal, or pro-drug, justice.

It was a unanimous ruling joined in by both Republican and Democratic appointees. It was written by Andrew Kleinfeld, who was appointed by George H.W. Bush, and joined in by Kim Wardlaw, a Clinton appointee, and Cynthia Holcomb Hall, a Reagan appointee.