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The PJ Tatler

by
Bryan Preston

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February 27, 2014 - 1:07 pm

Hecklers win. Patriots lose.

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…

Read the rest. In brief, Cinco de Mayo celebrations at a California high school were punctuated with lots of Mexican flags. Some students didn’t much like that.

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.

The principal told the kids who were wearing American flags that they could not wear them. No similar order was given to the kids who were displaying the Mexican flag, which is the flag of another country (a lot of people seem to forget that). The kids wearing the American flags were subjected to threats. The kids wearing the American flag sued for their right to wear the flag, and have lost. The lesson this has taught the threateners and others who might be inclined to imitate them: Go ahead and make all the threats you want. The courts will side with you, and curbstomp your victims’ rights.

“Heckler’s vetoes,” which is what this is, aren’t generally allowed under the First Amendment. There’s a decent chance that SCOTUS strikes this down. Until recently, the Ninth Circuit was the most frequently overturned appeals court in the United States. But it’s working its way back to #1.

Bryan Preston has been a leading conservative blogger and opinionator since founding his first blog in 2001. Bryan is a military veteran, worked for NASA, was a founding blogger and producer at Hot Air, was producer of the Laura Ingraham Show and, most recently before joining PJM, was Communications Director of the Republican Party of Texas.

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Top Rated Comments   
This decision goes in the face of the Tinker precedent established by the Supreme Court in 1969. In that decision students wore armbands protesting the Viet Nam War. The majority decision stated that the school could only limit students' free speech rights if the students would cause a disruption by doing so.
What is interesting here is that the students who wore U.S. flags were not disrupting school; instead other elements were threatening to disrupt the school if those students were allowed their free speech rights (the heckler's veto alluded to above). What is especially galling is that the school chose not to discipline those individuals who threatened violence against students engaged in lawful, peaceful conduct; rather the school disciplined the students who were threatened with violence. One wonders how this can possibly co-exist with zero tolerance for bullying, but then progressives do seem to be able to hold mutually contradictory ideas in their heads at the same time with no apparent difficulty.
As a personal note I will add that I have worked as a teacher in a public school classroom, and during that employment I had a student who decided to wear a swastika armband to class, which I ordered him to remove. He promptly appealed to the school principal, who overruled my decision, citing Tinker. So I suppose I could add swastikas to the list of emblems given precedence over the Stars and Stripes in our public schools.
26 weeks ago
26 weeks ago Link To Comment
List the names of the Judges who made the decision. Perhaps we can demonstrate our first amendment right of ridiculing these anti-Americans.
26 weeks ago
26 weeks ago Link To Comment
In solidarity then, every parent of those students should wear American flag shirts on Cinco De Mayo.
26 weeks ago
26 weeks ago Link To Comment
All Comments   (13)
All Comments   (13)
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Well, I would suggest that all the "American" students wear their Stars & Stripes to school anyway---all on the same day. Then I suggest a walk-out, also all on the same day. The school cannot financially afford to expel ALL of them so their protest should get some traction.
26 weeks ago
26 weeks ago Link To Comment
The 9th circuit also said Californians may open-carry.

So, the next such altercation will be settled with gunfire.
26 weeks ago
26 weeks ago Link To Comment
I wonder what might have happened if one side had offered to exchange shirts? The "Anglo" kids would wear the Mexican shirts, and vice/versa.

Just askin'
26 weeks ago
26 weeks ago Link To Comment
"I'm sorry, my son won't be in to school on May 5. He's deathly allergic to brainless political correctness in authority figures. It's a hereditary condition."
26 weeks ago
26 weeks ago Link To Comment
American Revolution II is long overdue.
26 weeks ago
26 weeks ago Link To Comment
Part of the Federal government full court press against the people of the United States. This is an example of changing facts on the ground with illegal alien invasion to help destroy culture.

There will be more of this, and there will be more Federal Judges ordering states to recognize same sex marriage.
26 weeks ago
26 weeks ago Link To Comment
so, communicating a threat is protected speech, if you're of Mexican decent, but peacefully wearing of an american flag, by an actual american citizen, in the united states and in a school that, presumably, still has the american flag on a pole out front, is not, because it might 'upset' and somehow provoke said mexican decendant to violence?

I guess that means that people of mexican decent can't be expected to have self control when seeing the flag of their host country, and shouldn't be trusted to behave like civilized, rational adults, even when 'celebrating' the independence of another nation.

Wow, a decision like that could lead rational people to conclude that the 9th circuit court is a bunch of anti-mexican racists.
26 weeks ago
26 weeks ago Link To Comment
The obvious solution is to threaten violence on everyone who wears a Mexican flag.
26 weeks ago
26 weeks ago Link To Comment
Maybe some students could wear shirts celebrating the new name given for this day by King Barry the Anointed - Cinco de Cuatro!
26 weeks ago
26 weeks ago Link To Comment
This decision goes in the face of the Tinker precedent established by the Supreme Court in 1969. In that decision students wore armbands protesting the Viet Nam War. The majority decision stated that the school could only limit students' free speech rights if the students would cause a disruption by doing so.
What is interesting here is that the students who wore U.S. flags were not disrupting school; instead other elements were threatening to disrupt the school if those students were allowed their free speech rights (the heckler's veto alluded to above). What is especially galling is that the school chose not to discipline those individuals who threatened violence against students engaged in lawful, peaceful conduct; rather the school disciplined the students who were threatened with violence. One wonders how this can possibly co-exist with zero tolerance for bullying, but then progressives do seem to be able to hold mutually contradictory ideas in their heads at the same time with no apparent difficulty.
As a personal note I will add that I have worked as a teacher in a public school classroom, and during that employment I had a student who decided to wear a swastika armband to class, which I ordered him to remove. He promptly appealed to the school principal, who overruled my decision, citing Tinker. So I suppose I could add swastikas to the list of emblems given precedence over the Stars and Stripes in our public schools.
26 weeks ago
26 weeks ago Link To Comment
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