Banning American Flags? Ninth Circuit Nixes Student Speech

Barb Wire

A three-judge panel of the Court of Appeals for the Ninth Circuit tortuously upheld a California high school’s decision to forbid students from wearing American flag T-shirts because of race-related threats of violence by “Mexican students”* carrying the Mexican flag during a school-sanctioned celebration of Cinco de Mayo.

The court held in Dariano v. Morgan Hill Unified School Dist., that school officials did not violate the students’ rights to freedom of expression, due process, or equal protection. It began with a truism it eventually turned on its head:

School administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights.

The court cited the U.S. Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, holding that students may…

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express [their] opinions, even on controversial subjects … if [they] do[] so without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.

The court acknowledged that Mexican students had repeatedly threatened violence against those wearing American flag T-shirts, including…

F*** them white boys. Let’s f*** them up.

The court also agreed with school officials’ undisputed conclusion that students wearing American flag T-shirts hadn’t threatened any violence against Mexican students.

As the district court noted, the students offered no evidence ‘demonstrating that students wearing the colors of the Mexican flag were targeted for violence.’ The students offered no evidence that students at a similar risk of danger were treated differently, and therefore no evidence of impermissible viewpoint discrimination.

The court held that school officials didn’t discriminate when they silenced peaceful students wearing American flag T-shirts, while allowing Mexican students to carry the Mexican flag and threaten opponents with violence.

Herein lies the Ninth Circuit’s First Amendment lesson for public school students—If you don’t want your speech suppressed by a “heckler’s veto,” make sure you match your opponents threat with threat, rather than speech with speech.

How’s that going to work for school administrators faced with “the daunting task” of “keeping students safe”?

Here are some questions regarding decisions by Morgan Hill school officials, which should have piqued the interest of the constitutionally-challenged Ninth Circuit:

When school disruptions began in 2009 and continued each Cinco de Mayo, wouldn’t it have been less “impinging” on “constitutional rights” if school officials had convened a mandatory school assembly for students and faculty, teaching that tolerance and free speech are two-way streets?

When school officials ordered students wearing American flag T-shirts to “turn them inside out or go home,” wasn’t that a violation of CAL. ED. CODE Sec. 48950 (a)?

A school district operating one or more high schools, a charter school, or a private secondary school shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

Shouldn’t school officials have implemented disciplinary action against the students who threatened violence against others in violation of the CAL. ED. CODE?

Sec. 48900 (a) (1): “caused, attempted to cause, or threatened to cause physical injury to another person,”

Sec. 48900 (r): “engaged in an act of bullying,”

Sec. 48900.3: “has caused, attempted to cause, threatened to cause, or participated in an act of, hate violence,” and/or

Sec. 48900.4: “creating an intimidating or hostile educational environment”?

In light of the court’s ruling, what should school officials do, if on the next Cinco de Mayo, students threaten violence unless the American flag is taken down from the school flag pole and replaced with the Mexican flag?

What should school officials do, if on the next Cinco de Mayo, violence is threatened against a school employee exercising his or her right to display a U.S. flag or wear a flag pin under CAL. GOV. CODE Sec. 434.5 (c) (1)?

“A local government agency may not adopt any policy or regulation that prohibits or restricts an employee of that agency from displaying a Flag of the United States, or a pin of that flag, on his or her person, in his or her workplace, or on a local government agency vehicle operated by that employee.”

Contrary to the Ninth Circuit’s “deference to school officials,” isn’t it the job of judges to “second-guess” government agents that suppress free speech rights, especially when hecklers threaten speakers with violence?

Would the last American to leave California kindly bring the flag?

*The Ninth Circuit adopted the practice of the district court, which “at times referred to students of Mexican origin born in the United States and students born in Mexico collectively as ‘Mexican.’”

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Jan LaRue is former Chief Counsel at Concerned Women for America; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. She has had extensive public speaking and debate experience in law schools, universities, and national media on various constitutional issues. She is a member of the California and U.S. Supreme Court bars and co-author of Protecting Your Child in an X-Rated World. She currently writes as senior legal analyst for the American Civil Rights Union.

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