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
randyjet,
In my neck of the woods, Cinco de Mayo is a drinking day!!!
Are you meaning to reconstitute prohibition?
/s
Randy:
I agree. That would be one approach. Some schools have many children of Ukranian immigrants and those schools I’ll conjecture do not celebrate the Ukranian independence day on August 24th.
I agree that it is a great drinking day, but I think that part is not allowed in schools. The day should be used to educate some misguided students who might THINK they are Mexicans that unless they were actually BORN in the physical boundaries of Mexico, the Mexicans most certainly do NOT consider them Mexican in any way shape or form. They call such people of Mexican descent, Americans, and as such those people have no rights even if they wish to take Mexican citizenship. They cannot hold ANY governmental job, can never run for the Mexican Congress or hold any elective office, and I just learned that they cannot even hold a commercial pilots license. I don’t know if they can be admitted to the bar, but I would doubt it, and there are hundreds of jobs which they can never hold.
So along with Cinco de Mayo, I think that the students need to learn some facts to go with their cerveza.
So are our children lernin’ yet?
Again, PC people in the education industry are the reason for this problem, not Mexican people.
How about making the didth of May de[prdatopm day for all the iilleagles
What is ‘multi-culture’ about banning a flag on any given day? It’s a gutless solution upheld by a gutless and inept court for a issue amnesty will only make worse. Nice going 9th Circuit Court and all families and teachers involved. More wrong thinking being taught to our youth.
Mexicans celebrate three holidays Cinco de Mayo, September 16, independence day and some time in November to be exact it’s the day the new Chevrolets come out
Bruce…LMAO here. I bet that 90% of the students celebrating Cinco de Mayo could not give a coherent answer to what that day represents in Mexican history…other than the 5th of May.
Although sometimes I wonder how many US Citizens know what the 4th of July is all about other than a time for fireworks.
Simple solution.Ban Cinco de Mayo and the problem goes away. It is not an American holiday or a Federal one.
What Mike said.
I hold Pres. Obama responsible for a number of bad policies, but this situation is wholly unrelated to anything he has done or failed to do. The court’s decision is wrong, but it is not wrong because it is unpatriotic or because it subordinates the U.S. flag to the flag of Mexico. It is wrong because it subordinates freedom of speech to cultural sensitivity.
It is understandable that celebrations of Cinco de Mayo will involve displays of the Mexican flag. The display of the U.S. flag is a form of counter-protest, stupid and juvenile, but protected. This is an opportunity to teach students very important lessons about the Constitution, cultural diversity and Cinco de Mayo. That opportunity has been forfeited through fear of disorder and lays down the principle that the First Amendment may be sacrificed when petty authorities conclude that it is incompatible with multi-culturalism.
Why is the celebration of a foreign holiday not seen as a provocation that should be banned?
The Cinco de Mayo Day has been celebrated for years in America with no problems. Now, someone has pushed the “dumb” button”. I blame the ignorance of our worthless US Government and the present day so called President. For years, we, the citizens, have had to take a back seat to the illegals (I’m not saying kids in the schools are all illegals but a good many of them are). We work and the Feds force us to pay for health, education and anything else the illegals need. That causes resentment since our gov. won’t enforce our borders. Then here comes PC stupidity in the schools. Pop tart guns are outlawed. Again citizens of America are FORCED to bend over. I blame Obama for his divisive rhetoric, for destroying the rule of law and for filling the US up with illegals from every Nation. When Americans cannot wear a tee shirt with a US Flag on it then it is past time to curtain the ignorance and stupidity of this country.
I watched the illegals march American streets carrying their Mexican Flag and that day I said to myself we would lose America if we didn’t work to stop the stupidity of this government. I blame both political parties for not protecting America. Our kids are paying the price for the greedy politicians. We need to throw everyone of them out.
I think every kid wanting to wear a flag decorated tee shirt should walk out. Every day after Cinco De Mayo wear the decorated shirt and wear it with pride. Make it your uniform for school!!
Well said Patricia, Thank -You !
Students should be able to wear an American Flag T-Shirt and if there is trouble then throw the trouble makers out of school.
Bad decision. If the 2nd amendment cannot be restricted, why can the First Amendment?
Just because I used to volunteer there I thought I’d mention that both the Tinker armband and the Bong Hits for Jesus paper banner are on display in the First Amendment Gallery at the Newseum in Washington, DC. Mary Tinker has even gone to the Newseum to give talks to touring school kids (and anyone else who stops by while she’s there). Also in the Gallery is a wall full of freedom of speech incidents that have happened at schools and the decisions handed down by various courts on whether the students were protected or not. It’s fascinating stuff! Lastly, there are touch-screen kiosks on the wall that ask questions that are largely up for grabs as far as freedom of speech is concerned, asking if you agree or disagree, then showing you the percentage of answers given. You can even type in your thoughts on the matter. One of the few privately-operated museums in DC that cost money to get into that is totally worth the price of admission! I think fans of Professor Turley’s blog, when the visit DC, should make a point of visiting. (And no, I no longer volunteer nor am I on the payroll, but my wife and I are annual members.)
http://www.newseum.org/exhibits-and-theaters/permanent-exhibits/first-amendment/index.html
The Redcoats are coming! The Redcoats are coming! And I am not referring to some sort of post coital depression. The way to resolve this is for the kids to band together and all show up with the same tee shirt and when sent home don’t come back. Start a charter school or home school. Anything is better than this Russian version of free speech.
With blue helmets
Paul: You have it absolutely correct.
Truancy laws force kids to suffer through this discriminatory inanity. But if you are official suspended or expelled, then you are immune from truancy laws.
Let’s see what happens if a significant part of the school body comes in with American flags on their T-Shirts.
The kids are the customers here, not the other way around.
“Don’t be a dick”
http://meta.wikimedia.org/wiki/Don%27t_be_a_dick
If the shoe fits.
The court did not think this through very well. Banning the flag may assuage Hispanics but what about inflaming whites? Seems to me that the court’s decision places Hispanics in greater danger of retaliation.
In a nutshell:
“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.” -Jonathan Turley
Agreed.
AMEN, Nick!
How about a T-shirt with a hammer & sickle???