Supreme Court rejects high school free speech appeal about American flag

by Joni B. Hannigan , Editorial Staff |

WASHINGTON (Christian Examiner) -- A free speech appeal was rejected by the U.S. Supreme Court yesterday when the high court threw out a request by California parents who questioned why their high school kids were disciplined for wearing American-flag t-shirts during a 2010 Cinco de Mayo celebration.

The 9th U.S. Circuit Court of Appeals backed Live Oak High School officials who told the Morgan Hill, California, students to turn their t-shirts around or go home, according to a local news report.

Administrators cited fear of violence on campus between Latino and Anglo students on a day that many Latinos wore Mexico's colors of red, white and green.

(AFLC)From left to right: Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel. These boys with friend Clayton Howard were asked to turn their American flag T-shirts inside out or go home when they wore them to Live Oak High School in Morgan Hill on Cinco de Mayo in 2010.

The four students involved in the lawsuit, Dariano vs. Morgan Hill Unified School District, now adults, are Daniel Galli, Austin Carvalho, Matthew Dariano, and Dominic Maciel.

The parents' lawyer, William Becker, called the Supreme Court decision a troubling First Amendment precedent for students.

"It essentially means that American public schools can silence patriotic expression whenever it offends anti-American students, or students who prefer to identify with their cultural or national origins," he said in the Mercury (San Jose) News. "This is a tragic outcome."

School administrators have said the case was never about the American flag, but about "protecting the safety of students."

In the 1969 case of Tinker v. Des Moines Independent Community School District the court ruled students do not shed their free-speech rights "at the schoolhouse gate" but that school officials could abridge those rights if conduct would result that "materially and substantially interfere" with the operation of the school. In that case, the school district's actions also stemmed from a fear of possible disruption rather than any actual interference.

Kendall Jones, whose son was one of those sent home after the flag flap, said there is "no excuse for excluding the flag" in trying to "embrace a multicultural celebration."

"I found it shocking," he said of the decision. "The flag represents the nation as a whole. It is about respect for the United States."

A 2014 opinion piece in the Los Angeles Times "Mexican flag, si; American flag, no?" written in response to the 9th Circuit's decision said the school's actions could be interpreted as a "heckler's veto" – an act "suppressing speech because it might cause people who heard it to act inappropriately."

"School officials have a hard job, made even harder by a multicultural student body and simmering ethnic tensions, but, as the court notes, the adults in charge of Live Oak High School knew from experience that the school's observance of Cinco de Mayo might lead to disruption or worse.

"So why not deal proactively with the issue, by making it clear ahead of time that there would be consequences for messing with a student because he or she wore a shirt with the American flag -- or the Mexican flag for that matter? If the school is incapable of maintaining discipline, maybe it shouldn't celebrate Cinco de Mayo," the columnist said.

Lawyers for the parents had won the backing of both liberal and conservative prominent First Amendment advocates, including UCLA law professor Eugene Volokh, UC Irvine School of Law Dean Erwin Chermerinsky, and Chapman University law professor John Eastman.

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