Students appeal ruling in American-flag T-shirt case

Friday, March 2, 2012

The Morgan Hill, Calif., high school students prohibited from wearing American-flag T-shirts on the Mexican holiday Cinco de Mayo in 2010 have appealed their case to the 9th U.S. Circuit Court of Appeals.

The students from Live Oak High School contend in Dariano v. Morgan Hill Unified School District that the First Amendment protects their right to engage in peaceful patriotic speech and accuse school officials of viewpoint discrimination. Viewpoint neutrality is the most fundamental of all free-speech principles in First Amendment jurisprudence: Government may not discriminate against speakers’ point of view.

School officials prohibited the students from wearing T-shirts bearing the flag on May 5, 2010, out of a concern that the shirts would offend Mexican-American and perhaps other students and might cause a disruption. In November 2011 a federal judge sided with the school officials, noting that they had received comments that the students wearing the  shirts could be threatened and that there was “ongoing racial tension and gang violence in the school.”

“Although no school official can predict with certainty which threats are empty and which will lead to true violence, the Court finds that these school officials were not unreasonable in forecasting that the Plaintiffs’ clothing exposed them to significant danger,” U.S. District Judge James Ware wrote.

Ware relied on a totality-of-the-circumstances approach, endorsing the concept of heckler’s veto and deferring broadly to officials in finding for the school. This means that the court examined a broad range of factors and circumstances, allowed the possible hostile reactions of other students to limit the speech-rights of the American-flag-wearing students and gave wide latitude to the judgment of school officials.

In their appellate brief, the students — known in court papers as M.D., D.M. and D.G. — contend that “American schools cannot logically ban the American flag for any duration or reason.” They reject the analogy to cases that upheld censorship of the Confederate flag in school, emphasizing that people view the American flag much differently.

The seminal standard governing student-speech cases comes from the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent School District (1969). The high court ruled in Tinker that public school officials in Iowa could not censor students’ wearing of black peace armbands because there was no showing of, or even a reasonable forecast of, a substantial disruption.

The students in the Morgan Hill case contend in their brief that there was no evidence of any disruption at the school. “Prior to restricting Plaintiffs’ patriotic message, school officials had no information that Plaintiffs’ speech had caused any disruption whatsoever at the school, even though students had been on campus for over 3 hours and attended at least two classroom periods as well as homeroom” (emphasis in original).

In their brief the students also emphasize the viewpoint-neutrality principle undergirding the First Amendment. They claim that school officials egregiously violated that principle: “Here, there is no question that Defendants banned Plaintiffs’ pro-America viewpoint because they believed it would offend the Mexican students who were expressing a pro-Mexican viewpoint.”

It will be interesting to see whether the 9th Circuit panel will view the case as one of appropriate school judgment, and defer to school officials’ expertise, or will see it as a classic example of a censorial overreaction.

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