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
Check your email
AY:
I concur.
Perhaps they were passing around another type of gas – hemp’n along their ruling. (which I don’t mind too much – if it will prod them from their haughtier).
BTW – emailed OS in this ring around to get email
LD,
I think the ruling smells….
AY!
Pass gas jokes?!?!
REALLY!
I think the 9th Cir. let one rip with this ruling and opine.
If we start to adjust our behavior on liberties for every possible “perceived” irrationality of miffed persons;
It would be against the law for one to accidentally run over a skunk;
and for the follow up “gas passer byes” to make any “sniffle” commentary.
BFM, Great response to PC horseshit question.
“I wonder if these students regularly wear shirts with an american flag plastered on the front or do they only wear them on special occasions like Cinco de Mayo.”
How is that relevant to the issues of free speech and whether the American flag has any special significance deserving of special deference?
Or to take another view on that kind of question, suppose some one asked a slightly different question: “I wonder if these students regularly wear shirts with an Mexican flag plastered on the front or do they only wear them on special occasions like Cinco de Mayo.”
I think celebrating all holidays and whatever along with the pagan celebration should be mandatory….. I think that Gentiles should learn the Julian calendar…. And one has to wonder why Russia didn’t adopt the Gregorian calendar until after the early 1900…,, was it because of the strong hold of the orthodox catholic….. And they couldn’t fathom following anything the Roman Catholics had created……
As long as we have different races we will always have conflicts.
Not the question.
The only time this becomes an issue is when adults put their noses in.
Is there a politician around who thinks things through before he/she acts? They allow unrestricted immigration. They require the school districts to educate the children of illegal immigrants. They allow illegal immigrants government benefits. They grant minority (read privileged) status to the children of the illegal immigrants in order to have another minority group to pander to. They fail to strive to assimilate the immigrants so that the immigrants will continue to view themselves as outside mainstream America and, consequently, be amenable to pandering. They even celebrate the holidays of foreign governments in order to appease the immigrants. Of course, the immigrants will view themselves as something other than Americans and, when Americans celebrate their patriotism, there will be conflict. Oh, yes, when Americans celebrate their patriotism, they undoubtedly will be called racist. This name calling perpetuates the divisiveness and facilitates the pandering. Anyone with more than two brain cells could see this coming. Our leaders did not.
If the school fears violence between Mexican American students and just American students then it is not racial. Its ethnic. Cant you get your race and ethnicity down pat? Or whatever her name is in that town. I am going to ride through that town and warn them that the Ladinos are coming.
I thought that this would be discussed here!.
This must be a sort of “fighting words” analysis, but it isn’t good.
This school conflict is a kind of class war, but it is a war of words.
If the school needs to call the police ahead of time in case of a problem, better to do that, than to have this kind of “prior restraint” approach gain any (more) traction.
Randyjet:
Washington is a “shall issue” CPL state. The police/sheriff’s office is mandated by state law to issue one if the applicant is not prohibited from carrying firearms by state or federal law and a few other requirements.
The list can be found here
I lived in Vancouver for about a year, but I guess that was before this law took effect. Glad to hear that you can carry.
It might have been in National Geographic; it’s been a couple of decades since I read the article. However, I recall reading about an American who married a Russian woman and lived with her in Siberia. He proudly hung his US flag on Soviet soil, and the authorities didn’t have a problem with it. So, the Soviet Union tolerated an American flag on their soil, but US school officials have a problem with images of a US flag in an American school on US soil, because *they* have failed to do their job to control the students.
PaulRevere,
Good idea however… does the school have a no guns on campus policy?
The Second Amendment and the First Amendment could be invoked here. Perhaps if enough parents showed up in the tee shirts with their shotguns the point could be made– without pointing the shotguns. I thought we won the Revolutionary War.
“So along with Cinco de Mayo, I think that the students need to learn some facts to go with their cerveza.”
When they’re old enough, of course. Or are you suggesting that children should be drinking under aged?
/s
Oops… 9-1-1 morphed into 9/11 somehow in my diatribe… The psychology of it all… The madness… The double plus good feeling…
randyjet,
I know. I’ll give you an example:
A year ago last October, I was assaulted in the middle of the street in front of people mulling around at 9pm in the evening in downtown Seattle. Besides not one human being intervening in the assault while I was laid out flat in front of a Metro bus in his upper cut, I had to dial 9/11 on my phone. Actually, I was already dialing prior to the uppercut as he had just swiped my glasses from my face and scratched my face.
As his friend was pulling him off of me and while I was staggering onto my feet, he had to correct the description I gave the 9-1-1 operator, “He’s about 5’10”, Hispanic male…” “I’m Mexican” he shouted back.
As if Hispanic isn’t a correct general description of person.
It’s as if someone was describing me as a white male and I corrected them, “I’m an American!”
Besides the police’s lack of concern and blaming me for speaking out when the young man was urinating on the Federal Post Office building in front of about 25-30 people waiting for the bus. The police’s reaction was, “We encourage people to not get involved if they see something.”
max 1 sorry to hear about your beating. It is obvious that civility and decent manners has been sacrificed on the altar of PC. The reaction of the cops should be called out as well. As for underage drinking, since illegals do not feel that they have to obey any laws they don’t like, given the attitude of the cops, there is nothing that can be done about that any more than we can enforce our laws on other things. Too bad you cannot have a CWP in Washington state. A person such as you describe cannot be educated, just eliminated by prison or death.