Court: U.S. flag is unsafe at U.S. school

Flag T-shirts banned on Cinco de Mayo in Morgan Hill

Daniel Galli, Austin Carvalho, Matthew Dariano and Dominic Maciel and (not shown) Clayton Howard were asked to turn their American flag T-shirts inside out or go home when they wore them to Live Oak High School in Morgan Hill on Cinco de Mayo. (Julie Fagerstrom)

It’s not safe to display the American flag at an American high school, writes Eugene Volokh in his Washington Post blog. The Ninth Circuit Court upheld a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo because Mexican-American students had threatened violence the year before.

Under the Supreme Court’s Tinker decision, student speech may be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. The earlier threats of racial violence justified the flag ban, the court ruled.

This is a classic “heckler’s veto” — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker‘s “forecast substantial disruption” test, such a heckler’s veto is indeed allowed.

“Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations,” writes Volokh, a UCLA law professor. But what a sad situation.

Somehow, we’ve reached 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 — 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, whether such an incident happens on May 5 or any other day.

Live Oak High School students have learned a simple lesson, Volokh concludes. “If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers.” Thuggery pays.

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  1. Administrators = pigs.

  2. we need to ditch the multicultural crap and bring back Americanization.

  3. If Mexico were so great, why are they here? You are in America, you are an American first.

  4. Roger Sweeny says:

    The leadership of this school has admitted it does not have control. That would seem to call for change of some of the school policies or change of some of the leadership, or perhaps both.

  5. I’m so glad I didn’t have to put up with this crap when I attended public schools 🙂

  6. “Thuggery pays.”

    Something that’s not lost on the radical Muslims, either, the way they try to threaten those who refuse to put their Mohammed up on a pedestal.

    Regardless of who the beneficiaries are, political correctness isn’t merely a harmless, quaint liberal notion. It has real-world, life-and-death consequences ~

  7. My grandfather’s are spinning in their graves.

    Here’s evidence that the inmates are running the asylum. Any kid who wants it should be presented with a voucher good for their PPR to seek a charter or parochial school of their choosing; heck – private school too; but the PPR likely won’t cover it. Obviously the school is failing in its mission and can’t be trusted with tax dollars; declare the patient dead and get on with the mourning.

  8. Hmm. The school has stated in a court of law that they cannot provide a safe educational environment, at least on Cinco de Mayo. Seems to me that would be a good day for parents to keep students home, for their safety.

  9. Haven’t there been similar cases, if I recall.

    I don’t agree with the handling of this situation at all.