Blog: Are American-flag T-shirts disruptive?

Tuesday, May 11, 2010

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A Los Angeles Times blog and other sources reported that five students at Live Oak High School in Morgan Hill, Calif., were ordered to remove their American-flag T-shirts on May 5, Cinco de Mayo, because the flag images would offend many Mexican-American students.

Administrators reportedly called the T-shirts “incendiary” and said they might cause fights. The students refused to remove their shirts and went home to avoid suspension.

Legally, the question is whether the T-shirts really would cause fights or whether the school was overreacting. The U.S. Supreme Court set the standard test on that question in Tinker v. Des Moines Independent Community School District (1969). The Court said school officials could not censor student speech (“speech” includes attire) unless they could reasonably forecast that the speech would cause a substantial disruption of school activities or invade the rights of others.

In Tinker, the Court ruled that Iowa public school officials overreacted when they punished kids for wearing black peace armbands during the Vietnam War. Justice Abe Fortas warned that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

Most courts have ignored the “invade the rights of other” part of Tinker in favor of the substantial-disruption analysis. “Invade the rights of others” should be interpreted to mean truly trampling on people's rights, not just simply offending someone. Otherwise, any student speech on any controversial topic could be squelched.

Courts recognize that a healthy degree of deference is due to school officials, who have to deal with myriad student discipline issues every day. But we must also remember that the Court in Tinker said that students “do not shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”

In fact, a Bay Area NBC site reported that the school district disapproved of the school's approach, saying, “The district does not concur with the Live Oak High School administration's interpretation of either board or district policy related to these actions.”

If there had been violence at the school in the past related to the display of American- vs. Mexican-themed clothing — no reports of such could be found — then school officials might have had a case of “reasonable forecast of substantial disruption.” Otherwise, it sounds more like “undifferentiated fear” — and censorship. And as the school district also said in its statement:

“While campus safety is our primary concern and administrators made decisions yesterday in an attempt to ensure campus safety, students should not, and will not, be disciplined for wearing patriotic clothing. This matter is under investigation and appropriate action will be taken.”

And the school later backed down. According to another Los Angeles Times blog post, Live Oak High School Principal Nick Boden “accepted the blame while apologizing” on May 7. “In this situation, I may have moved too quickly in drawing the line of when to take preventative action,” he was quoted as saying.

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