On February 27th, 2014, the 9th Circuit Court ruled in Dariano v. Morgan Hill Unified School District that the principal of Live Oak High School acted within his constitutional rights by requesting that students remove their American flag t-shirts on Cinco de Mayo. Asking students to take off American flag apparel in an American high school may seem blasphemous; however, neither assistant principal Miguel Rodriguez nor the court acted unconstitutionally.
Tinker v. Des Moines Indep. Comm. School Dist. (1969) states that the rights of students in public high schools are in fact limited if “school authorities [can reasonably] forecast substantial disruption of or material interference with school activities.” This case certainly meets those criteria, if you turn the page back exactly one year prior to this incident. On May 5th, 2009, there were at least two altercations between Caucasian and Mexican students. Both reported altercations allegedly involved one group taunting the other with either American or Mexican flags.
Fast forward to May 5th, 2010. The assistant principle sees a group of white students wearing American flag t-shirts. The obvious decision is to ask them to change clothes, and make everyone’s lives much easier. Rodriguez even told them that their absence from school would be excused if they would just go home. However, the damage was already done, and the students started receiving violent threats later that day.
Even though the court’s decision seems easy and clear-cut, it gets a little messy because essentially the group that was being threatened is also being punished. This is known as “Heckler’s Veto.” Heckler’s Vetoes are usually not allowed under the First Amendment. The courts were put in place to protect our first amendment rights. However, this is a rare exception due to the Tinker case.
There have been three more similar Supreme Court rulings since Tinker. Most recently, in 2007, Morse v. Frederick allowed the suspension of a student who held a banner saying “Bong Hits 4 Jesus” as the Olympic torch passed by in a parade which students had been let out of school to attend. School administration using their discretion to suppress certain types of speech is neither new nor shocking at this point.
The real shame is not the court ruling one way or another. It is a shame that things even got this far. Obviously students should not be sent home for showing off their patriotism. But at the same time, why are those students only being patriotic on May 5? Our First Amendment freedoms were put in place so that our country would stand united even though citizens may have different backgrounds, beliefs, etc. It certainly was not put in place for one group of people to use as a shield while they taunt another group.
Where are the “teachers” through all of this? This seems like it would be a heck of a learning opportunity for these young adults, not a litigation opportunity. Caltech history professor and renowned Supreme Court expert Morgan Kousser raises an excellent point.
“I personally think wearing a flag on Cinco de Mayo is insulting and nasty and might even be racist, and I don’t approve it,” he said. “But I’d be hesitant to censor it or to authorize anyone else to. If I were a teacher and this happened, I’d think I’d been presented with a wonderful teachable moment, and I’d try to exploit it.”
Instead of blaming the courts or racism, people need to take responsibility for their own actions. Uncle Sam is here to govern this country, not to be our baby sitter.