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Ruling allows schools to prohibit students from wearing the American flag

The Ninth Circuit Court of Appeals held in Dariano v. Morgan Hill Unified School District that a school can prohibit students from wearing the American flag when wearing the flag is likely to cause a disturbance at the school. The case arose when Live Oak High School held a Cinco de Mayo celebration in 2010. During the same celebration a year earlier, the principal of Live Oak High School diffused an altercation “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.”

Hoping to avoid the same problem during the 2010 Cinco de Mayo celebration, the principal sent home several students who wore American flags on their clothing after they were threatened. The students were threatened with violence by phone and text message, even after leaving school. The Ninth Circuit held that the principal’s decision to send home the American flag wearing students was not unconstitutional.

To understand this holding, one needs to understand a United States Supreme Court case from the late 60’s – Tinker v. Des Moines Independent Community School District. (393 U.S. 503 (1969)). In Tinker, a group of students planned to wear black armbands to high school during the period leading up to Christmas in order to protest the Vietnam war. The school banned the wearing of such armbands, and the students were suspended for doing so. The students sued, and the Supreme Court held that prohibiting the armbands was unconstitutional. There are two key parts to the Tinker Court’s reasoning relevant here.

First, the school authorities had no reason “to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.”

Second, it was also relevant “that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools w re buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these.”

Applying the first part of the Tinker reasoning to the facts from the Cinco de Mayo celebration, the Ninth Circuit reasoned that the principal was justified in sending the American flag-wearing students home out of concern for safety of those students, and the interference that might be caused by a fight at the school.

In this author’s opinion, this situation is a classic case of what is known in First Amendment law as the “heckler’s veto.” The heckler’s veto describes a situation where someone who doesn’t like what is being said threatens violence against the speaker, and, out of a concern for the safety of the speaker, the government compels the speaker to be quiet. In normal First Amendment contexts, heckler’s vetoes are not allowed; the government must protect the speaker and punish those who undertake violence against the speaker.

The school case, however, presents unique concerns. The Supreme Court has long held, in Tinker and other cases, that while students do have constitutional rights at school, those rights can be abridged to keep order at school. Apparently, the Ninth Circuit has applied that rationale to a heckler’s veto situation. Rather than impose upon the school an obligation to safeguard speakers whose message is likely to incite violence, the school can simply prevent the message from being heard.

The full opinion is available here:

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