Court Supports School Decision to Ban Racially Charged Flag Shirts

Many students at a high school in Northern California who were told to either turn the shirts displaying the American flag they were wearing inside out or go home for the day last Cinco de Mayo felt their constitutional rights of free speech were being violated. But school officials said they felt that Latino students at Live Oak High School near San Jose, would take offense that the American flag displays on shirts was meant to spark racial discord and stood by their decision.

Now a federal appeals court has ruled in favor of the school’s decision, saying that administrators had to make a decision regarding the display of the U.S. flag shirts by some of its students that protected all of the student body from racially charged violence that day.

Parents of the students who wore shirts decorated with American flags on Cinco de Mayo, which is traditionally a Mexican celebration, filed a lawsuit, claiming their children’s freedom of speech was trampled when the school said that wardrobes displaying American patriotism could not be displayed on May 5. But the school already has a long history of tension between white and Hispanic students in addition to numerous incidents in which racial groups and gang members have created violent disturbances on school grounds.

Lawyer and blogger Eugene Volokh adds:

The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist.(1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption. There had been threats of racial violence aimed at students who wore such shirts the year before…

Volokh quotes one of these incidents from the decision:

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. 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 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….

At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.’s] clothing.

Court members clarified that they were not making a judgment call about hosting a Cinco de Mayo celebration itself, but was supporting the decision by school administrators to be proactive about avoiding any situation that might spark racially-motivated violence that day should Latino students at the school take offense that certain white students chose May 5 as the day to wear shirts emblazoned with pictures of the American flag. But an attorney for one of the parents said they will now appeal to the Supreme Court.

On the Web:

Court rules school can ban American flag shirts to avoid racial strife
http://www.foxnews.com/us/2014/02/27/court-rules-school-can-ban-american-flag-shirts-to-avoid-racial-strife/

Not safe to display American flag in American high school
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/27/not-safe-to-display-american-flag-in-american-high-school/