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