School officials can constitutionally suppress free speech in the name of “safety,” a federal appeals court has ruled.
A panel of the US Ninth Circuit Court Appeals ruled that it was OK for high school administrators to ask students to remove American flag T-shirts during a 2010 Cinco de Mayo Celebration.
Many parents were outraged.
“This is the United States of America,” parent Kendall Jones said. Jones’ son, Daniel Galli, was sent home from Live Oak High School in Morgan Hill, California, because he wore an American flag t-shirt. “The idea that it’s offensive to wear patriotic clothing … regardless of what day it is, is unconscionable to me.”
Administrators asked four students not to wear US flag T-shirts because they were afraid such shirts would provoke violence between Latino and other students on Cinco de Mayo. One of the students who was asked to remove the US flag was Dominic Maciel, who is a second-generation Mexican-American. Another of the students, Matthew Dariano, is also of Mexican heritage.
The parents felt that the school had violated the students’ First Amendment right to freedom of speech. The parents and attorney William Becker alleged that administrators exaggerated the threat of violence and, they said, officials didn’t ask other students to remove clothes with the Mexican flag.
How The Controversy Began
The flag flap began on May 5, 2010, when Assistant Principal Miguel Rodriguez approached five student athletes who were wearing flag T-shirts. Rodriguez told the students to remove the shirts because they were “incendiary.”
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Some students celebrating Cinco de Mayo found the flag T-shirts offensive, according to the San Jose Mercury News. Around 40 percent of Live Oak High School’s student body is of Latino heritage.
“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 in a unanimous decision that affirmed the school’s action. “(The past events) made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”
There had been an incident at a 2009 Cinco de Mayo celebration where students yelled at each other. There was no violence during that incident, according to court documents.
The Next Step In The Case
“We believe the 9th Circuit correctly determined that administrators must be afforded reasonable leeway to make difficult decisions when necessary to protect student safety, even where such decisions impact student speech,” Steve Betando, the superintendent of the Morgan Hill Unified School District, told the Mercury News.
Rutherford Institute President John W. Whitehead disagreed. Rutherford assisted the students in the case.
Whitehead believes the district’s actions are a violation of free speech and a logical extension of so-called zero tolerance policies that restrict student’s rights.
“The decision to bar students from expressing themselves by wearing patriotic apparel to school demonstrates the absurd situation which young Americans face in the public schools today,” Whitehead noted in a press release. “Between zero tolerance policies and heavy censorship of student viewpoints, school administrators throughout the country have made it clear that they have no respect for the constitutional rights of young people, who are just as deserving of the rights afforded to them under the Bill of Rights as any other American.”
The Morgan Hill parents have resolved to take their case to the U.S. Supreme Court if necessary. Their attorney, William Becker, said he will ask the full Ninth Circuit Court of Appeals to review the decision. The next step would then be the Supreme Court.
Becker’s contention is that a 1969 Supreme Court ruling called Tinker v. Des Moines Independent School District gives public school students the same First Amendment rights as other Americans.
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