Star-Spangled Banner Does Not Wave in California

ollowing on the heels of Veteran’s Day, it is certainly sad to write about Old Glory coming under fire from a far-left court and weak school officials.  Last Tuesday, the U.S. District Court for the Northern District of California (the San Francisco Division) ruled against American students who wanted to wear their nation’s colors to class.

You may recall back in May 2010, when a group of predominantly white California students at Live Oak High School were told to turn their t-shirts inside out or be sent home because they depicted the American flag, which angered some Mexican sudents.  I assumed that after the initial public outrage, school officials would see the error of their ways and apologize to the students that wore the red, white and blue.  Students of all races would be permitted to wear patriotic clothing, and that would be the end of the story.  I was wrong.  Rightfully feeling their freedom of speech was violated, three of the patriotic students sued the school and its administrators.

The facts of the case are particularly disturbing.  The court reported that the tension began the previous year:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students.  This altercation involved an exchange of profanities and threats were made.  A makeshift American flag was put on one of the trees on campus.  A group of Caucasian students began clapping and chanting “USA” as this flag went up.  This was in response to a group of Mexican students walking around with the Mexican flag.  One Mexican student shouted “f*** them white boys, f*** them white boys.”  Vice- Principal Rodriguez directed the minor to stop using such profanity.  The minor responded by saying “But Rodriguez, they are racist.  They are being racist. F*** them white boys.  Let’s f*** them up.” … When Plaintiff M.D. wore an American flag shirt to school on Cinco de Mayo 2009, he was approached by a male student who shoved a Mexican flag at him and said something in Spanish expressing anger at Plaintiffs’ clothing. (Internal citations omitted and language censored).

So on May 5, 2010, when the three plaintiffs in the lawsuit showed up to school wearing American flag-themed t-shirts, a group of Mexican students gathered and began to initiate threats.  School Administrators, fearing for the students’ safety, told them to turn their shirts inside out or go home.  The teens went home where they continued to receive threats including the threat of gang violence.

In court, the students argued that they were treated differently than many Mexican students who proudly wore clothing displaying the colors of the Mexican flag.  District Court Chief Judge James Ware admitted that this was true, but since no one had threatened the Mexican students for wearing their shirts, the Mexican students were not in danger.  Therefore, the school had no rationale for asking the Mexican students to remove their clothes.

You read that right.  If the patriotic students had acted like punks and threatened to beat up the Mexican students for wearing Mexican themed apparel, they would have had a better legal argument.

According to Bill Becker, the lawyer for the plaintiff students, “[t]he court found that the rights of students promoting their Mexican heritage trumped the rights of students expressing their patriotism.”

In what decent society does the bully win by forcing a student to remove an American flag-themed shirt through threats of violence and the legal system rewards the bully?

The legal principle the district court appeared to follow is known as a “heckler’s veto.”  In the 1969 case, Tinker v. Des Moines Independent Community School Dist., the Supreme Court held that a school may limit a student’s speech if it’s likely to cause a “substantial disruption of or material interference with school activities.” (The Court upheld the students’ right to wear black armbands to protest the Vietnam War saying that it would not cause a significant disruption).

Writing on the Volokh Conspiracy blog, law professor Eugene Volokh recently expressed his dismay with the entire state of affairs in California:

the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and 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.

One problem with the heckler’s veto is its inequitable application across the country.  Often, a heckler’s veto will win out if the agitator is attacking a conservative principle.  However, if a heckler threatens a liberal ethos, than the outcome is less certain.

Consider the case of Hoover High in Alabama.

In August, Hoover High officials asked a female student named Sara to remove a t-shirt with a pro-gay message out of concern for her safety.  Instead of complying, the student protested and sought counsel.

The female student hired the Southern Poverty Law Center – which is best known for profiling hate groups and attacking conservatives.  (Read more about the Southern Poverty Law Center at, the National Center’s website that profiles non-profits).  SPLC staff attorney Samuel Wolfe fired off a letter to school officials threatening legal action against the school, and claimed:

even if there are students who will act disruptively in reaction to Sara’s t-shirt, the school has a duty to punish the disruptive students, not to prohibit Sara’s speech.

The school immediately rescinded its ban and allowed Sara to wear her shirt.  I happen to believe this was the right result and the school administrators were wrong to bar Sara from wearing her shirt it in the first place.  The First Amendment protects the freedom of speech for all, not just the freedom of speech that we may like to hear.  However, the disparate treatment between the California students and the Alabama student represents a telling commentary on our society.

Apparently we will tolerate speech that promotes a pro-gay message and we will punish student speech that patriotically represents the American flag.  Does that sound like a country that has its priorities in order?

The attorney for the California students plans to appeal the ruling.  Let’s hope the appellate court reads a little further into the Tinker decision and common sense prevails.  Even though the Supreme Court ruled in Tinker that school officials could stop speech that may lead to a severe disruption, it did not obviate school administrators from the task of first disciplining unruly students.  The Court said:

in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.  Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear.  Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance.  But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. (Internal citations omitted).

That sounds more like an America with its values in check.

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