Education

Happy Constitution Day! Ninth Circuit Affirms That It’s Illegal To Wear American Flag Shirts On Cinco De Mayo

It’s official: the U.S. Ninth Circuit Court of Appeals has issued an order declining a request for an en banc hearing in a case involving four students in at a California high school who were sent home for wearing American flag T-shirts on Cinco de Mayo.

The full slate of Ninth Circuit judges has thus agreed with a lower district court and with a trio of appellate judges that officials at Live Oak High School in Morgan Hill, Calif. could censor students who wanted to wear flag-emblazoned shirts.

The federal appeals court issued its denial of an en banc hearing on Sept. 17 — Constitution Day.

“[N]o further petitions shall be permitted,” the court ordered.

The trouble dates back to Cinco de Mayo (May 5) in 2010, when officials at Live Oak High — a school with a predominant Mexican-American student body — forced the students to remove their American flag-festooned shirts. Administrators called the shirts “incendiary” and worried that fighting would break out between white and Latino students if Latino students noticed the shirts. So, assistant principal Miguel Rodriguez told the students to turn their shirts inside out or leave school. (RELATED: America 2014: Students Have No Right To wear American Flag Apparel Because Some Mexicans Might Be Offended)

Students of Mexican heritage told local media that the students who wore American flag T-shirts 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 high school, located 20 miles south of San Jose, has experienced numerous gang problems. Nevertheless, the school seems to have organized impressive Cinco de Mayo celebrations in recent years.

In the previous three-judge ruling, 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, 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.

An online version of the opinion, Dariano v. Morgan Hill Unified School Dist., is available here.

In May 2013, tea party groups announced plans to protest outside the high school while wearing American flag T-shirts. (RELATED: Latino Student Group Says Eating Tacos Is Offensive To Mexicans)

The practice of limiting one group’s free speech rights because that speech might cause another group to react violently is known as a “heckler’s veto.” It is understood by free speech enthusiasts to have a chilling effect on First Amendment rights.

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