An Inconvenient Symbol: Why The Flag Decision Flies In The Face Of Our Core Values

Below is my column today in USA Today on the 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 opinion is Dariano v. Morgan Hill Unified Sch. Dist., 2014 U.S. App. LEXIS 3790.

On Cinco de Mayo in 2010, students who came to Live Oak High School outside San Jose were rounded up by teachers for engaging in offensive speech. The speech? They had American flags on their T-shirts, something the school viewed as insulting to Hispanics. Administrators insisted that only the Mexican flag could be shown on campus that day.

Last week, the school’s actions were unanimously upheld by the federal appellate court in California — a ruling that would allow flags and other patriotic symbols to be banned like profanity or hate speech.

In reality, the ruling is not a sign of contempt for the flag but a sign of contempt for the rights of students. The fact that this speech concerns the flag itself (the very symbol of civil liberties) captures how far the courts have gone in abandoning core First Amendment rights for students.

The case started because Live Oak High was concerned about prior disruptions and saw the American flag as “incendiary” and disrespectful. Accordingly, Assistant Principal Miguel Rodriguez ordered students to change their shirts or turn them inside out to hide the flag. Those who did not comply were sent home. Last Thursday, the federal appellate court in California unanimously upheld the school’s actions. Judge M. Margaret McKeown of the Ninth Circuit 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.” What they did is second-guess the First Amendment and the precautions put in place to protect it.

What is most ironic is that the Ninth Circuit decision was handed down days from the anniversary of the 1969 decision in Tinker v. Des Moines Independent Community School District. In Tinker, the court supported the free speech rights of students who were wearing black armbands in protest of the Vietnam War, a highly divisive issue that had resulted in violent clashes around the country. Then, the court insisted that students did not “shed their constitutional rights … at the schoolhouse gate.”

Since Tinker, however, the federal courts have not only stripped students of their free speech rights at the schoolhouse gate, they also have done so at their bedroom doors. Federal courts have upheld a series of cases where school officials have punished students for statements that they make outside school on social media. The current members of the Supreme Court have fueled this rollback in their own controversial decisions.

What is most disturbing about last week’s decision is that the court entirely misses the distinction between speech and conduct. When presented with threats of violence, the school should punish those who engage in harassing or violent acts. Indeed, the court described an earlier confrontation when some students raised an American flag on Cinco de Mayo and “one Mexican student shouted ‘f*** them white boys. … Let’s f*** them up.'” One would have thought that those who made threats would face action from the school administration. Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.

Our high schools should be training future citizens to live within a pluralistic society. Instead, Live Oak High is teaching students that it is the speech, not those who threaten the speakers, that is the problem. Citizens shaped in such an environment are likely to view speech as a discretionary privilege allowed by our government rather than an individual right guaranteed in our Constitution.

Ironically, the flag is the very symbol of a nation of differing faiths, cultures and races bound by liberty. Perhaps the school was right: If you are going to deny free speech, it is the last thing you want to see.

Jonathan Turley, a George Washington University law professor, is a member of USA TODAY’s Board of Contributors.

March 3, 2014

44 thoughts on “An Inconvenient Symbol: Why The Flag Decision Flies In The Face Of Our Core Values”

  1. The only “bright spot” is that they are trampling on the rights of the majority. So it could be worse.

  2. “Somehow I can’t make sense of this at all.” Good. Unless you hope to be a judge.

  3. Situational Free Speech?
    Re: 9th U.S. Circuit Court of Appeals says a public school may order students not to wear a shirt with the American Flag on it when a foreign holiday is being celebrated.
    Think about this a second if you’re old enough to remember the anti-Viet Nam war protests. Generally speaking, it was the liberals who opposed the war and supported the right to protest, even for students in public schools. (And I was on their side, on the free speech/expression issue at least, as were the Courts as I recall.) Now, it’s generally the liberals who are concerned that this very same type of free speech/expression will offend someone and are willing to turn the First Amendment on it’s head NOT to protect free speech, but to avoid being offensive. So the proper exercise of one’s First Amendment rights is “situational?” Somehow I can’t make sense of this at all.

  4. The mentality of our court system and our state and federal government, under rule of law, is to ban and make everything illegal (except drugs),so as to NOT offend anyone and protect everyone. PLEASE stop protecting me so much 🙁
    California used to be a state that most other states looked up to, now the states legislature and judicial system has gone down the drain. I hope other sane states will ignore them.

  5. Many Americans claim to support the constitutional “rule of law” which promotes civility and peaceful political discussions. Many claim to be “law & order” Americans.

    The problem is rule of law that protects the student wearing the tee shirt also protects gay rights, gun rights, religious rights, press freedom, speech rights, women’s rights and due process rights.

    Democrats don’t like the entire package and Republicans don’t like the entire package. Government bureaucrats dislike most of the package like requiring warrants based on probable cause before searches. Every group wants to cherry pick the Bill of Rights.

    The Bill of Rights/US Constitution is an entire package – you accept all of it or none of it.

  6. If the school had brought on additional police for the day to maintain order, and then worried that that was not enough to ensure the safety of the people (kids), they would have a better case.
    Their theory seems like a “fighting words” theory, but I can’t quite place it.

  7. ” Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.”
    Or telling women not to wear short skirts.
    Prior restraint.

  8. @Nick Spinelli: “Baron of the PC Peninsula”.

    Damn’! That sounds important. I’ll take it! And while you’re at it, go ahead and call me a “bleeding-heart liberal”. I actually don’t mind being flattered. Fair warning, though: it will get you nowhere.

    On that PC thing: as you well know, it stands for “politically correct”. And the operative word there is “correct”.

  9. ‘1984’. They work on the kids to make them timid & unexpectant of rights in adulthood. Quite disgusting; & this from someone who often does not see the point in flag waving as its generally too ambiguous as to what you mean. However, to ban it on a tee shirt to any age any day of the year is totally disgusting!

  10. The First Amendment is designed to protect unpopular and even offensive speech from government sponsored retaliation [school officials] – popular speech doesn’t need protecting.

    There are very few exceptions to America’s “supreme law of the land”. Federal, state and local laws are mandated to operate within these boundaries under our Supremacy Clause of the U.S. Constitution [Article VI].

    Short of a school uniform policy, the school could provide better civics education so children better understand our Bill of Rights and rule of law: teaching kids to counter peaceful Freedom of Speech – with “more” peaceful Freedom of Speech, not violence or property destruction.

    Former U.S. Supreme Court Justice, Sandra Day O’Connor, offers free civics education to teachers and parents at It’s a very sophisticated website that uses various games to teach kids about American government. Teachers and school administrators might learn a thing or two also!

  11. Flag etiquette in our country used to dictate that the American Flag would be displayed higher than others. Why would the Mexican Flag be worn on a tea shirt in this Country and not the American Flag? All the teachers, administrators,and judges are here alive in a so called free country because of what that flag stands for, they should all be deported to Mexico being they love that Culture and their flag so very much; and that goes for the boys in the other post that said they want to beat up the white Americans for Raising high our Banner.

  12. “The wearing of the shirts is plainly anti-Mexican hate speech.”

    Well, maybe it is hate speech. But in the article describing the situation, the clearest expression of hate came from the adolescent shouting words to the effect ‘f*ck those boys up’. If I understood the article correctly that student was not trying to display the US flag.

    In any case, I, for one, don’t see how you can get to symbolic speech being ‘plainly’ anything.

    It is symbolic. The meaning of the symbol has to do with both the intention of the one who displays the symbol and the understanding of the one who views the symbol.

    The first possible meaning of a flag is the country or entity the flag represents.

    The first meaning that I see in the display of a flag is allegiance by the one who displays the flag to that entity, in this case the US.

    There might be any number of reasons why students or others might want to display their preferred flag.

    If the display of the flag is hate speech then the one who sees that meaning in the symbol needs to explain to the rest of us why that is the most reasonable interpretation of the symbol.

    Finally, we should remember two things. Expressing support for one group is not necessarily the same as opposition to a different group. And there is nothing necessarily hateful about expressing opposition to a different group.

    Hate is specific and serious. Merely displaying support for or expressing opposition to a particular group are not at all the same as hate.

  13. Darren:

    Children cant drink or smoke or drive. They arent expected to understand various things because of their youth. Doesnt a jury trial imply a level of sophistication most youths dont have? In most cases do we want our young subjected to adult law?

  14. US Flag = Hate Speech sayeth William Berry, Baron of the PC Peninsula.

  15. The decision is correct.

    The fact that it was the U.S. flag on the tee-shirts is completely irrelevant. The wearing of the shirts is plainly anti-Mexican hate speech. The school admin was correct in recognizing it as such.

  16. I agree with Gary T and I might add I have always felt the lack of due process with juveniles is a constitutional abomination. I am not aware of anything in the constitution that grants rights only upon adulthood other than sufferange and ages of representatives, sentators, and the president. The lack of a jury trial is the most flagrant. Sure, the states call it delinquency and a civil matter but it is not relevant and just a change of semantics.

  17. doesn’t anyone recognize common sense any more ? If a kid wants to wear any flag on their clothes, unless there is a school uniform, that should be ok – what are they achieving here ? I do not understand !

  18. I commend the author for mention of the Tinker case. Last year Mary Beth Tinker, one of the Tinker plaintiffs, and her family did a tour around the nation to encourage students and others to exercise their free speech rights. The students in this particular school out there in northern Mexico should completely immolate the black armband thing embraced by the Tinkers. They could then use the Tinker decision as their Supreme Court precedent. The students should invite the Tinker Tour to come to that Mexican American town and teach the teachers about the Constitution. They could stop in at the Ninth Circuit Court of Appeals. Remember this too: Those who can: do; those who can’t: teach; those who can’t teach: teach teachers. We have to turn this around and teach those dumb teachers and principals about the Constitution. I think that the students should attend the School Board Meeting with the black armbands and chant that The British Are Coming! Remember. It is what you wear that matters.

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