Constitutional Law, Free Speech, Politics

Ninth Circuit Rules School Can Ban Tee-Shirts With American Flag During Cinco De Mayo

There is an interesting ruling out of the United States Court of Appeals for the Ninth Circuit over a ban at a California high school of students wearing tee-shirts with American flags during the Mexican heritage celebration Cinco de Mayo. The court ruled in favor of the school out of concern for potential racial violence. We previously discussed this controversy. I strongly disagree with the holding and the logic. The opinion is Dariano v. Morgan Hill Unified Sch. Dist., 2014 U.S. App. LEXIS 3790 .


The school required students to turn their tee-shirts inside out if they showed an American flag at the Oak High School in the San Jose suburb of Morgan Hill. Judge M. Margaret McKeown ruled that the first amendment had to give way to the deference afforded to school officials. She began the opinion by emphasizing the reasonable concerns of the school:

“Live Oak had a history of violence among students, some gang-related and some drawn along racial lines. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds.

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.2 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 [*5] 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.”

That is a troubling history to be sure and it proved determinative in the free speech analysis. McKeown ruled:

Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence. “We review . . . with deference[] schools’ decisions in connection with the safety of their students even when freedom of expression is involved,” keeping in mind that “deference does not mean abdication.” LaVine, 257 F.3d at 988, 992. As in Wynar, the question here is not whether the threat of violence was real, but only whether it was “reasonable for [the school] to proceed as though [it were].” 728 F.3d at 1071; Karp, 477 F.2d at 175 (noting that “Tinker does not demand a certainty that disruption will occur, but rather the existence of facts which might reasonably lead school officials to forecast substantial disruption”). Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials, namely Rodriguez, did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.

The decision is part of a growing line of cases granting sweeping deference to school officials and curtailing the free speech rights of students. I have long disagreed with that trend. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court supported the first amendment rights of Iowa residents John F. Tinker (15 years old), John’s younger sister Mary Beth Tinker (13 years old), and their friend Christopher Eckhardt (16 years old) in wearing black armbands in protest of the Vietnam War. In his majority decision, Justice Abe Fortas held that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” In a statement would would seem to fit this case, Fortas found that “the record does not demonstrate any facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.” Since Tinker, the Supreme Court has steadily limited the speech rights of students as in the ruling in the “Bong Hits For Jesus” case.

I fail to see why the court should not “second guess” officials when they are curtailing core free speech protections. The problem is not the tee-shirts but violent or unruly conduct by students. It is the conduct of the students not the content of the tee-shirts that should be the focus of the school in my view.

What do you think?

Here is the opinion.

Source: USA Today

155 thoughts on “Ninth Circuit Rules School Can Ban Tee-Shirts With American Flag During Cinco De Mayo”

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  2. I wore a french flag for 4 years on May fifth while I was in high school. Nobody ever bother to ask me why or complained. I’m not french, I was just trying to be incendiary. But the idiots that celebrate Cinco de Mayo don’t know history.

    1. They weren’t offended by the FLAG OF THE UNITED STATES (there is no “American” flag Baxter), they were offended by the disrespect shown to the Flag by those a-holes who were printing it on their T-shirts (later to be placed in a laundry hamper or on the little brat’s floor to be shit on or stepped on).

      Why are there so many ignorant people on these pages?

  4. Cinco de Mayo IS an American holiday. Mexico is in the Americas – RIGHT! LOL

  5. Only American holidays should be celebrated in schools. All other holiday celebrations should be banned. They can celebrate in their homes and/or neighborhoods, but not in schools. This goes for Mexican, Irish, Scottish, British, Canadian, etc.

    1. Isn’t Christmas a foreign holiday? Started in the area around Germany as I recall.

  7. Section 8g of the Flag Code reads, “The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.” It’s not “illegal” per se (The Supreme Court said disrespecting our Flag was Freedom of SPeech and guaranteed under our Constitution) but if you CARE about our Flag, you will NOT disrespect it and the Flag Code sets out how to CARE for our Flag. Get over yourself!

    1. I agree! Thank you Supreme Court for standing up to Bullys and letting our public schools operate without this type of disrespect for our Flag!!!

    1. If you didn’t get the information in GRADE SCHOOL about how to respect our flag, perhaps you can read the US Flag Code:

      http://en.wikipedia.org/wiki/Us_flag_code

      PLEASE don’t disrespect our flag by wearing one of those damn flag T-shirts – if you do, PLEASE don’t dump it in your clothes hamper and let your shite-stained underwear rub up against it or wash it in the same washing machine as the one your dirty socks are in!!! Dear God – what numbskulls!

  12. Please read my post, then comment. The operative phrase was “If I was another student . . . .” I am 57 years old now. However, if I were a 16 year old, my interests would be much different. I don’t really care what you think about me, but I care a WHOLE lot what I think about you. From your words, I think that you wouldn’t stand up to someone disrespecting our Flag or our Constitution which it represents. At the present time – as a 57 year old veteran of the Vietnam war – I would be more judicious in my approach to the punks. Today, I’d probably order 10 pizzas to be delivered to their home and then watch as their parents kick their little punk asses! I’m a little smarter now.

    I notice you still don’t condemn the disrespect shown to our Flag by these punks – even after you have learned that wearing an image of a US Flag on your clothing IS DISRESPECT (something you were ignorant of before). So much for your respect of our Flag and constitution is represents.

    Isn’t the reason that the Republicants invaded Iraq was because we disagreed with them? You know, like they thought the oil under their land was theirs, silly rabbits.

    If you knew the constitutional limits on Presidential powers you would not call President Obama, our FIRST president who had relatives who were slaves in this country, a dictator. Especially when you did not use that term for Bush.

    BTW – you gonna make it out to Operation American Spring on May 16th when the tea party tries to pull off a military coup?

    1. James – What do you think of blasphemy? Should we condemn those who blaspheme, or just let them go their way? Why are you hot to condemn people for what they think or don’t think?

      1. We’re done here. The punks which wore those shirts disrespected the flag of the United States and Cinco De Mayo is a valid celebration of the United States. Nuff said.

    1. “It’s a Mexican history standoff!”

      I have found the discussion of the battle, the war and the implication for the holiday, Cinco de Mayo, interesting.

      But I don’t think any of that has any relevance to the question of the rights of students or when and under what circumstances administrators can reasonably infringe those rights.

      I am not one who believes discussion threads must remain on point at all costs. On the contrary, I think one of the strong points of this blog is that we can follow the conversation where it naturally leads.

      But I don’t see that details about the battle or the Holiday can sway the decision regarding free speech for students.

      As a tangent, I will point out that if you really believe Cinco de Mayo is about Mexicans fighting for the benefit of this country then it would seem that recognizing what they fought for would be well within the range of acceptable behavior when celebrating the holiday.

      How can one consistently claim we recognize their sacrifice for our country but don’t dare mention, what they fought for, this country in the same breath.

      1. Please read the history BigFatMike – you miss that Mexico knew that if they could hold out a little longer, the United States would be able to supply them with aid and weapons against the French. It’s like when the French still honor the United States for their efforts during World War II, we didn’t fight for the French, we fought for the US – but we helped them anyway. It’s what friends and neighbors do for each other. The FACT is that the Battle of the Puebla was an important military battle BECAUSE it helped to enable the United States to defeat the Rebels and retain this country as a unified nation. I don’t really care one way or another whether you think so or not – but this Nation does celebrate Cinco De Mayo and it is a celebration to commemorate the contributions of the Mexicans to our Nation. I celebrate with my fellow US Citizens every 5th of May. Perhaps you might even after learning more about the contributions of Mexico to our Country (next, read about the Community Land Grants in the Treaty of Guadalupe Hildago and learn that Mexicans who lived in this land covered by the Treaty kept their ownership rights – that means that Mexicans STILL own lands in the United States by Treaty). We have a community here in Arizona called Guadalupe which is one of those Land Grants. It is now one of the most lucrative pieces of land in Arizona and it is owned by Mexican indians who were here LONG before any Europeans were.

        I have already dealt with the question of those punks disrespecting our flag and rubbing their shit-stained underwear all over it in their attempts to bully other students into not celebrating Cinco de Mayo. If I was another student in that school, I wouldn’t have just threatened to kick their ass, I would have done it! If I see someone disrespecting our flag like that, I would go to jail in order to stop them. Where are your loyalties Bigfatmike? You’re probably on the side of the little punks and countenance their disrespect of the US Flag!

        http://www.gao.gov/new.items/d0459.pdf

        1. James; Did you read the decision about flag burning Texas v Johnson? Would you respect the flag and disrespect the Supreme Court? I believe that your priorities are significantly out of line. These kinds of actions are most often intended as an opposition to some policy or other, however inchoate, and even if the intention is to express disgust with what America is or has become, why would you want to punch the speakers? What exactly would that accomplish. It is not likely that that would change their minds by this violence, which is what I assume you would like to see happen. Or can you imagine that you are the dictator in Chief, and what you think goes?

        2. ” Where are your loyalties Bigfatmike? You’re probably on the side of the little punks and countenance their disrespect of the US Flag!”

          I stand 4-square with the constitution which applies to everyone – even those with whom we disagree.

          BTW, if you have not noticed the constitution give no shelter – none – to the idea that it is ok to beat people up because we disagree with them.

          Perhaps you should read more of the constitution before you read about foreign battles and attempt to instruct others of the meaning.

          It is ironic that you talk so much of respect when you have none for the constitution or for opinions that differ from your own.

  14. martingugino, James is off the wall. I suggest you go on line and look at the history of the French war in Mexico, not just one inconsequential battle.

  15. I see a lot of lengthy replies with name calling. Calling people names will not help them see your point.

    James: I don’t think the Attorney General would agree with you that the prisoners at Guantanamo are entitled to the protections in the Bill of Rights. That is partly why they selected the base in Cuba for the prison, because it could be run by the executive, without oversight from the other branches, especially the judiciary.

  16. “I support you for the Supreme Court.” I think the US budget problems could be almost solved if I were on the Supreme Court and the hearings and deliberations were pay-per-view.

  17. martingugino

    One of the primary missions of a school principle is to reduce violence in schools. Our students should be able to go to school and our teachers should be able to teach in an environment which places a priority on creating a environment for learning. Having a few ignorant punks try to provoke violence is reason enough for them to be sent home, however, the principal simply told them to turn their shirts inside out. One of the things you forgot to mention was that when these punks got home from school that day, they took off their T-Shirts with our Flag displayed on them (after sweating in them all day) and threw them in a corner with the rest of their rags until their parents came along and threw the shirt and their shit stained underwear in the same washing machine. Yeah – your heroes, these punk bigots, were responsible for rubbing shit on our flag – you agree with that? I sure don’t.

    Have you ever recited the Pledge of Allegience? If so, you should know the words: I pledge allegience to the Flag, of the United States of America, AND TO THE REPUBLIC FOR WHICH IT STANDS . . . . Tell me martingugino, just what document do you think forms the BASIS for our REPUBLIC? Obviously you don’t know or you would not make that statement so I’ll tell you – THE U.S. CONSTITUTION. Are you going to continue displaying your ignorance on this point?

    The Bill of Rights DO apply to the people in prison in Guantanamo Bay. The Republicants in congress are blocking legislation to allow President Obama to act in a manner which would recognize the specific rights given to non-citizens under the jurisdiction of the United States. The fact that over 95% of those detainees were caught up in the “fog of war” and have been released should tell you that treating people properly under our Constitution should be foremost. When America went over to the “dark side” and started violating the rights of these Detainees, a horrible precedent was set, one that could be used by future administrations against our own citizens as well as foreigners.

    http://www.cnn.com/2011/10/28/world/meast/guantanamo-guard/index.html

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