9th Circuit Holds that School Can Ban Display of American Flag

You may have heard about Dariano v. Morgan Hill Unified School District, in which a unanimous panel of the 9th Circuit Court of Appeals held that it was permissible for a public high school to demand that students remove clothing that displayed an American flag. Many conservatives are understandably upset with the decision. The context was this: the high school, in northern California, had a history of conflict between Caucasian and “Mexican” students. This conflict had been manifested in connection with prior Cinco de Mayo events, which the school sponsored:

Live Oak had a history of violence among students, some gang-related and some drawn along racial lines. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds.

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting “USA.” A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted “f*** them white boys, f*** them white boys.” When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.”

On the 5th of May in 2010, some students wore clothing to school that displayed the American flag. There was evidence that this was considered a provocation by some “Mexican” students:

A year later, on Cinco de Mayo 2010, a group of Caucasian students, including the students bringing this appeal, wore American flag shirts to school. A female student approached M.D. that morning, motioned to his shirt, and asked, “Why are you wearing that? Do you not like Mexicans[?]”

Fearing that “Mexican” students might commit violence, school administrators required that students wearing American flag shirts remove them, or turn them inside-out.

This is a classic “heckler’s veto,” where free speech is suppressed because someone violently objects to it. In general, First Amendment jurisprudence says that speech cannot be suppressed on the basis of a “heckler’s veto,” but the 9th Circuit panel correctly noted that in the context of a public school, the rule is different. In the school context, students’ free speech rights are more limited, and officials can repress speech so as to avoid threats to student safety.

In that sense, the Dariano decision likely is not “wrong.” But it is certainly sobering: have California’s public schools really degenerated to the point where displaying an American flag risks violence? Apparently so. How about displaying a Mexican flag? Is there any possibility that the school’s “Mexican” students, as they were described by the court, would be barred from displaying a Mexican flag because they might be attacked by those loyal to the U.S.? I am just kidding, of course. That is unthinkable. In this case, the court rejected the plaintiff students’ equal protection argument, noting that no one had threatened to retaliate violently if a student displayed the Mexican flag:

As the district court noted, the students offered no evidence “demonstrating that students wearing the colors of the Mexican flag were targeted for violence.” The students offered no evidence that students at a similar risk of danger were treated differently, and therefore no evidence of impermissible viewpoint discrimination.

So the obvious solution is for white students to threaten to beat up “Mexican” students who show the colors of the Mexican flag on Cinco de Mayo. Somehow, though, I doubt that the result would be the same.

Then there is this: the 9th Circuit panel explicitly equated displaying an American flag to displaying a Confederate flag:

Schools may, under Tinker, ban certain images, for example images of the Confederate flag on clothing, even though such bans might constitute viewpoint discrimination. See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1184–85 (9th Cir. 2006) (noting that “[w]hile the Confederate flag may express a particular viewpoint, ‘[i]t is not only constitutionally allowable for school officials’ to limit the expression of racially explosive views, ‘it is their duty to do so’”.

American flag, Confederate flag, what’s the difference? The court attached zero significance to the fact that we are talking here about the Stars and Stripes. The heckler’s veto prevails. Just don’t try the same thing with the Mexican flag; not in California.

My takeaway from all of this is that our civilization is in a state of deep decline, from which it probably cannot recover.

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