Ninth Circuit: This is America, So You Cannot Display the American Flag

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.


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