9th Circuit: Students Have No Right To Wear A USA Flag Shirt

I’m a little late on this story from yesterday, but it brings up an interesting thought

(Washington Post) Today’s Dariano v. Morgan Hill Unified School Dist. (9th Cir. Feb. 27, 2014) upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before:

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.” Rodriguez removed the student from the area….

At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.’s] clothing.

Now, there’s no doubt that the students wore the USA flag shirts to be provocative.  Being provocative is Verboten and ends 1st Amendment protections, apparently. Because there might be violence because American citizen students were daring to wear those shirts as the school celebrated Cinco de Mayo, a somewhat made up holiday barely celebrated in Mexico, and mostly revolving around people in the US getting drunk (tell me I’m wrong). Violence against the students wearing the US shirts

This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

Yeah, but, um, multiculturalism? Something?

(Allahpundit) The court’s ruling: School administrators can force you to remove your American-flag tee if the alternative is a classmate punching you in the face. That’s because, per the Supreme Court, students don’t have the same free speech rights at school that adults do on other public grounds. At school, the name of the game is order and instruction; you’re entitled to free expression to the extent you don’t interfere with those goals, but once you do, the school’s entitled to limit your expression accordingly.

In other words, a bully can get the principal’s office to silence you by promising to beat your ass if they don’t.

Now, this could set an interesting precedent: let’s say some pro-abortion group, or Code Pink, or ANSWER (not that they really protest with Obama in the WH), a “climate change” group, protests against Keystone XL, etc, are out and about. Conservatives could claim that their signs and shirts are provocative, and could cause violence, so The Government should force them to cease and desist.

Granted, these are children, and they do lose some rights when attending school in the name of learning (like the right to learn how to do correct math), but this ruling rewards the bullies. It will most likely go to the Supreme Court.

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5 Responses to “9th Circuit: Students Have No Right To Wear A USA Flag Shirt”

  1. gitarcarver says:

    As you note, the issue with this ruling is the disparity.

    If the school had said “no flags” that would be fine. Instead, the school said that only one type of flag could was banned.

    Now we have the case where a group can effectively say “if this person does this, there is going to be trouble” and effectively limit the viewpoint of the other speaker.

    This should go to the SCOTUS where it should get a beat down from the court.

  2. david7134 says:

    I don’t understand why the American flag is offensive to Latinas. I can understand why it is offensive to the South, were we are occupied, but not any of the other perpetually offended people.

  3. gitarcarver says:

    I can understand why it is offensive to the South, were we are occupied, but not any of the other perpetually offended people

    Oh good grief.

  4. Corey says:

    Over on Planet Rational, the violent students would be banned from school.

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