David L. Hudson, Jr.: Calif. school can bar students’ American flag T-shirts

  Public school officials in Morgan Hill, Calif., did not violate the First Amendment rights of students by prohibiting them from wearing American flag T-shirts on the Mexican holiday of Cinco de Mayo (May 5), a federal judge has ruled.

  In May 2010, an assistant principal at Live Oak High School ordered several students to remove their T-shirts emblazoned with the American flag, calling them “incendiary.” In June 2010, three students — known in court papers as M.D., D.M. and D.G. — sued in federal court, alleging a violation of their constitutional rights — including the right of free speech under the First Amendment.

  On Nov. 8, U.S. District Judge James Ware granted summary judgment to the school defendants, ruling against the students in Dariano v. Morgan Hill Unified School District. The students’ attorneys vowed to appeal.

  With respect to the First Amendment claim, Ware reasoned that school officials met the “substantial disruption” standard of the famous U.S. Supreme Court case Tinker v. Des Moines Independent School District (1969). In Tinker, the Court ruled that school officials do not violate the First Amendment rights of students if they can reasonably forecast that the student expression will cause a substantial disruption of school activities.

  “Tinker unequivocally did not establish an ‘actual disruption’ standard,” Ware wrote. He reasoned that the reasonable forecast of substantial disruption calculus must be examined from a totality of the circumstances. He noted several incidents at Live Oak, including warnings from two students that the plaintiffs’ clothing would lead to violence, a near-violent confrontation during Cinco de Mayo in May 2009 the year before and “ongoing racial tension and gang violence within the school.”

  The plaintiffs had argued that their speech rights should not be limited by the hostile speech or conduct of other students. To do so, they said, would allow those other students to impose a “heckler’s veto” on the plaintiffs’ protected speech. Ware did not accept this argument, noting that many other courts “have demonstrated broad deference to the decisions of school administrators with regards to student safety.”

  “Although no school official can predict with certainty which threats are empty and which will lead to true violence, the Court finds that these school officials were not unreasonable in forecasting that the Plaintiffs’ clothing exposed them to significant danger,” Ware wrote.

  Attorneys for the Rutherford Institute and the Thomas More Law Center represented the students. “This is nothing more than a victory for political correctness,” said John W. Whitehead, president of the Rutherford Institute, in a news release. “If the court’s decision is allowed to stand, any speech a school official happens to dislike will be censored. Those who wrote our Constitution would be shocked.”

  The news release said Rutherford attorneys planned to appeal.

  About the author: David L. Hudson Jr. is a scholar at the First Amendment Center.

  This article was published by the First Amendment Center.