Is a school ban on American flag shirts on Cinco de Mayo constitutional?
April 30, 2014
By Jeremy Quattlebaum, Student Voices staff writer
What would happen if you wore shirt to school that administrators believe would cause trouble? You might be asked to change your shirt or turn it inside out.
But what if it’s a shirt with an American flag?
A case in the 9th U.S. Circuit Court of Appeals pitted students who wore American flag T-shirts on Cinco de Mayo against the school administration, which told them to turn their shirts inside out or go home.
It all goes back to May 5, 2010, Cinco de Mayo. Live Oak High School in Morgan Hill, Calif., was having a Mexican heritage celebration, and several students decided to wear American flag shirts.
School administrators said they believed that the students were trying to antagonize the Latino students and worried that the shirts could incite violence that day. School officials asked that the students cover the flag on their shirts or go home.
The students sued the school, saying their First Amendment right to free expression had been violated. The students and their families told newspapers after the incident that they were not trying to incite violence, but were showing their patriotism on a day that the school celebrated the heritage of another country.
“This is the United States of America,” Kendall Jones told the Mercury News. Jones’ son, Daniel Galli, was one of the students sent home. “The idea that it’s offensive to wear patriotic clothing ... regardless of what day it is, is unconscionable to me.”
Administrators had said that the school had a history of gang-related racial violence on Cinco de Mayo and that the threat of violence warranted action on the American flag shirts. They said the American flag shirts were banned only on Cinco de Mayo.
The case has been called another Tinker v. Des Moines Independent Community School District. The issue of balancing public safety in school and students’ First Amendment right to free speech is central to both cases.
In the 1969 Tinker case, the Supreme Court ruled that the black armbands with the peace sign worn by student protesters were protected symbolic speech. Administrators in Tinker also had said they feared the armbands would disrupt the school. The court ruled that the protest did not distract from the educational process and that the school did not prove that the armbands would have caused a disturbance.
In the Cinco de Mayo case, however, the appeals court said the school officials had legitimate safety concerns and were justified in their actions. The unanimous ruling said the school did not violate the students’ First Amendment rights.
“The controversy and tension remained,” the three-judge panel said in its opinion, “but the school’s actions presciently avoided an altercation.”
“Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence,” Judge M. Margaret McKeown wrote. The past events “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”
Update: March 31, 2015
The Supreme Court denied an appeal from the students who were ordered to turn their American flag T-shirts inside out. The justices did not comment on why they left in place the appellate ruling that found that school officials acted appropriately.
What do you think?
Do you agree with the court’s ruling? How does a school balance its concerns for public safety with students’ free speech rights? Which is more important? Did the school act within its bounds when it told students to cover the flags? Should the fact that the shirts had the American flag have any impact on the ruling? Join the discussion and let us know what you think!
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