Via The Volokh Conspiracy, now at The Washington Post.
On May 5, 2010, a group of students were told by the administration at Live Oaks High School in California that they could not wear shirts displaying the US flag; they were told to remove the shirts, turn them inside out, or go home, for their own safety. Apparently there were other students at the school who were offended by the American flag on Cinco de Mayo. Indeed, there had been an incident the previous year involving threatened violence against students displaying the American flag, and the 2010 group were later threatened by text message and telephone.
A lawsuit against the school district ensued, and yesterday the 9th Circuit Court of Appeals upheld the school’s decision to forbid wearing the US flag on Cinco de Mayo (Dariano v. Morgan Hill Unified School Dist. .
The court points out that the rights of students in public high schools are limited — under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities” stemming from the speech. And on the facts of this case, the court concludes, there was reason to think that the wearing of the T-shirts would lead to disruption.
From the Court’s decision:
Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. We hold that school officials, namely Rodriguez[the school’s assistant principal], did not act unconstitutionally, under either the First Amendment or Article I, § 2(a) of the California Constitution, in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.
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.
Yet even if the judges are right, the situation in the school seems very bad. 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.
And this is especially so because behavior that gets rewarded gets repeated.