On Thursday, the U.S. Ninth Circuit Court of Appeals upheld a California high school’s decision to outlaw American flag T-shirts on Cinco de Mayo.
Officials at Live Oak High School banned American flags on May 5, 2010 because the year before there had been altercations between white students and Mexican students. There were American flags and chants of “USA.” According to reports, there were also Mexican flags and kids running around saying, “Fuck them white boys. Let’s fuck them up.”
The high school, located 20 miles south of San Jose, has had numerous gang problems. Nevertheless, the school seems to have organized an impressive Cinco de Mayo celebration.
On Cinco de Mayo in 2010, a handful of students showed up with shirts emblazoned with American flags. The principal told those students to turn the shirts inside out or leave school.
All kinds of threats against those flag-wearing students occurred around May 5, 2010 as well.
School administrators at Live Oak High School — a school with a predominant Mexican-American student-body — had called the patriotic apparel “incendiary.” (RELATED: Students threatened with suspension for wearing U.S. colors on Cinco de Mayo)
Students of Mexican heritage told local media that the American flag-festooned students should apologize. They said ethnically Mexican students wouldn’t wear a Mexican flag on the Fourth of July (not a school day, but never mind).
The Ninth Circuit held that school officials have wide latitude to limit freedom of expression.
“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,” the court modestly observed. “Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”
Consequently, the court proclaimed, Live Oak High assistant principal Miguel Rodriguez acted constitutionally when he told students to turn their American flag shirts inside-out or hit the road with an excused absence because he was trying to prevent potential violence.
As UCLA law professor and Washington Post law blogger Eugene Volokh notes, the First Amendment typically does not allow government entities to censor speech this way. However, order and tranquility are paramount in a school setting. The Ninth Circuit’s decision arguably accords with previous case law. At the same time, it amounts to a “heckler’s veto” allowing violent people to co-opt the government into using its own compulsion to enact their desires.