Last week the Ninth Circuit ruled in Dariano v. Morgan Unified School District that a high school could punish students for wearing American flag T-shirts on Cinco de Mayo.
Americans could be forgiven for wondering if this isn’t, in fact, America, so why can’t students wear the American flag? After all, the school allowed other students to display and wear the Mexican flag, and the school was actually sponsoring a Cinco de Mayo celebration. Americans also might wonder if this is just a piece of ironic judicial performance art by the Ninth Circuit, a circuit often known for its strained relationship with legal reality, let alone common sense. Surely in a few days they’ll explain that they were just joking.
But in this case the Ninth Circuit actually has a case . . . sort of. Under Tinker v. Des Moines, schools can censor speech that is likely to cause a substantial disruption to school activities. As the court explained in its opinion, such a disruption was likely, given what had occurred in previous years:
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.”
It seems reasonable to conclude that the law does allow schools to take precautions against these kinds of disruptions. As Eugene Volokh has explained, this kind of “heckler’s veto” is generally forbidden under the First Amendment but allowed under Tinker. But if this is the law, then Americans might reasonably conclude, like Mr. Bumble, that the law is an ass.
The decision, in fact, makes a mockery of Tinker’s substantial disruption rule and eviscerates any student free speech rights except those favored by school officials. Anyone who takes the slightest offense at the speech of any other student could suppress the speech by throwing an infantile temper tantrum or threatening to “f*** them up.” Tinker held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Under the Ninth Circuit’s reasoning they do.
Schools, we are constantly told, are supposed to educate students for citizenship. Part of being an American citizen is learning to tolerate speech that you don’t like. If the sight of an American flag sends you into paroxysms of uncontrolled violent rage, then your prospects for being a decent citizen seem rather dim. Surely the responsibility of school officials in that situation is to explain to these students that the world does not revolve around them and their preferences. Apparently the school officials expected the students wearing the American flag not to explode at the sight of students displaying the Mexican flag. Why would they expect less of other students? Applying a lower standard of behavior to them hardly does them any favors.
More disturbing than the students’ behavior was the behavior of the school officials. We can forgive juveniles for being juvenile. But if the officials thought that they were not capable of preventing a riot from breaking out over American flag T-shirts, they had another option: they could have forbidden all students from wearing any T-shirts bearing the flag of any country. Instead they chose to engage in viewpoint-based discrimination. Schools are allowed under the law to suppress all viewpoints in student attire. Surely that would have been a better lesson for the students than censoring some speech while privileging other speech. Students would have learned that if they could not control themselves, everyone would suffer. If you can’t behave like and adult then we’ll treat you like a child. Instead the officials rewarded them, teaching them that extortion works. Like infants that scream until their parents give them another cookie, these students now know that if they scream long enough and loud enough they’ll get what they want. These students deserve better adult supervision. Life beyond high school is not so accommodating.
Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.