Dariano v. Morgan Hill Unified School District (CA) has upheld a California high school’s decision to forbid students from wearing American flag t-shirts on Cinco de Mayo, writes Eugene Volokh at the Volokh Conspiracy.
Five Live Oak High School students’ were asked to leave school because they donned American flag T-shirts on Cinco de Mayo. Questions of infringements of First Amendment rights were raised and although officials at the school chose not to comment on the situation at the time, one student said an official called the T-shirts “incendiary.”
The boys were told they must turn their T-shirts inside-out or be sent home as the school did not want any fights to break out among Mexican-American students and those wearing American flags.
One of the students remarked that other students were wearing American flags but since they were a group of five “we were the easiest target to cause trouble.”
The California Education Code § 48950 deliberately gives students more protection than the First Amendment does, writes Volokh. But the high school’s actions, as reported, violated that statute. However, K-12 schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech.
But while Volokh admits that the judge may be right, he contends that we’re at the point where students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it.
“The school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong.”
Here’s an excerpt from the court opinion that describes the court’s decision to uphold the restriction:
“When the government infringes upon protected speech in a discriminatory manner, such conduct may constitute a violation of the Equal Protection Clause as well as the First Amendment. SeePolice Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972). “[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny it those wishing to express less favored or more controversial views.
“Here, for the reasons discussed above, Defendants have provided a non-discriminatory basis for asking Plaintiffs to remove their American flag attire. Defendants have put forth significant evidence demonstrating that Plaintiffs were asked to change clothes in order to protect their own safety. Plaintiffs have not offered any evidence demonstrating that students wearing the colors of the Mexican flag were targeted for violence. To the contrary, the undisputed evidence shows that Plaintiffs were the only students on campus whose safety was threatened that day, at least to the knowledge of Defendants. In addition, Defendant Rodriguez has testified that he did not see any students wearing the Mexican flag on their clothing during the day. He also testified that he did not see any students with Mexican flags displayed on their person until he saw photos in the newspaper in the days following Cinco de Mayo.”