Court upholds California high school’s decision to ban American flag shirts on Cinco de Mayo
Generally speaking, it’s not terribly controversial to say that school authorities have something to say about what their students wear. When the authorities forbid wearing American flag apparel, controversy begins. And when the reason is because racist thugs are threatening to assault the people who wear American flag clothing, the situation becomes absolutely appalling.
I can’t think of any way to make the decision described by lawyer and blogger Eugene Volokh sound less awful:
Thursday’s Dariano v. Morgan Hill Unified School Dist. (9th Cir. Feb. 27, 2014) upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)
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.
There were more threats against the students, including what sounds like talk of a gang rolling into school to murder them. This was considered sufficient cause for the school to ban American flag T-shirts on Cinco de Mayo, without running into trouble with the First Amendment. Volokh calls it the “heckler’s veto,” citing jurisprudence that allows schools to follow the most efficient and practical steps to minimize the risk of a disturbance.
So free speech can be wiped out with threats of violence in schools, provided the threats are sufficiently impressive, causing the school to conclude that protecting the speech of oppressed students is more trouble than it’s worth? Sounds a bit like the hand-wringing about limiting free speech after the “Innocence of Muslims” video, famously and falsely blamed for inciting the Benghazi attacks by the Obama Administration. There was a lot of talk back then about how civilized types needed to rein in their free speech to avoid offending people who might react with violence. (There never seems to be much concern about offending those who do not react violently, does there?)
The First Amendment therefore grows weaker as its enemies become more determined to impose silence, which sounds like the opposite of the way a sacred principle is supposed to work.
As Volokh remarks, this is a particularly troubling message to transmit in a school:
Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.
And this is especially so because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?
Would anyone comfortable with this decision change their minds if a gang of skinheads was threatening to beat or kill anyone who wears a Mexican flag on Cinco de Mayo, and the school decided to forbid such apparel in the interests of preventing disruptions?
Coincidentally, another video offensive to Muslims just got censored on the Internet. This one was a Katy Perry music video, in which the singer is portrayed as a very picky Egyptian princess who magically disintegrates every suitor who doesn’t meet her lofty standards. Unsatisfactory Suitor Number One happened to be wearing an “Allah” medallion before he got obliterated.
I don’t know what Katy Perry thought was going to happen, but the UK Daily Mail reports that the video was swiftly declared blasphemous. (Does Perry not remember when Burger King was obliged to withdraw an ice-cream treat because the design on the lid supposedly resembled the name of Allah?) 100,000 “dislikes” were lodged against the video; a petition to have YouTube remove it entirely gathered 65,000 signatures in three days.
Before you can say “Islam Is Different,” the video was digitally edited – either by Perry’s record label or YouTube, nobody’s willing to say which on the record – to remove the offending necklace from the actor. Meanwhile, we’re just wrapping up a great national conversation about whether devout Christian bakers can be forced by law to create cakes for same-sex weddings.