Federal Appellate Court Upholds California High School’s Ban on American Flag Shirts on Cinco de Mayo

If you did a double-take when you read the title of this post, or re-read it to make sure you saw what you thought you saw, you are probably not alone. But it is accurate: on February 27, 2014 the Ninth Circuit Court of Appeals concluded that high school administrators did not violate the constitutional rights of students when it required them to turn their American flag shirts inside-out or go home for the remainder of the school day. (Dariano v. Morgan Hill Unified School District (9th Cir. 2014) 2014 WL 768797.) Though certainly controversial, the unanimous decision of the three-judge panel, which affirmed the same conclusion reached by a federal trial court, was based on a unique set of circumstances. The decision illustrates what the Court described — and all school administrators experience — as “the delicate relationship between students’ First Amendment rights and the operational and safety needs of schools.” Most important, it provides many helpful reminders of “best practices” in similar circumstances.

The circumstances leading to the litigation originated a year before the May 5, 2010 Cinco de Mayo celebration. The school had a “history of violence among students, some gang-related and some drawn along racial lines.” On Cinco de Mayo in 2009 there was “an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students.” (All judges used the term “Mexican” to include U.S.-born students of Mexican ancestry and students born in Mexico.) The groups exchanged profanities and threats, and a group of students began repeatedly chanting “USA” after hanging a makeshift American flag on a tree on campus; in response, a student in a group displaying the Mexican flag “shouted “f*** them white boys, f*** them white boys.” An assistant principal intervened. The same day an American flag-wearing student was approached by a student who “shoved a Mexican flag at him and said something in Spanish expressing anger at [his] clothing.”

One year later, a group of students wore American flag shirts to school on Cinco de Mayo. One was approached and asked “Why are you wearing that? Do you not like Mexicans[?]” Two students were also confronted about their clothing before “brunch break.” Two students alerted the assistant principal (the same one who intervened in 2009) that “You may want to go out to the quad area,” “there might be some issues,” and “there might be problems,” which he understood to refer to a physical altercation. Based on these reports the principal directed the assistant principal to have the students either turn the American flag shirts inside-out or take them off. The students refused. When the assistant principal expressed concern for their safety, they responded that they were willing to risk violence. The principal allowed two of these students to return to class because the image on the shirt was part of a logo of a popular martial arts company, and was therefore was “less ‘prominent’” and was “less likely [to get them] . . . targeted for any possible recrimination.” The remaining students were offered the option of turning their shirts inside out or going home for the day, with excused absences. They chose to go home and were not disciplined.

The Court analyzed the claims under Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503, in which the U.S. Supreme Court held public school students may express themselves even on controversial subjects so long as they do so “without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.” Under Tinker, schools may prohibit speech that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities,” and/or speech constituting an “actual or nascent [interference] with the schools’ work or . . . collision with the rights of other students to be secure and to be let alone.” The Court of Appeals also cited precedent holding “the First Amendment does not require school officials to wait until disruption actually occurs before they may act”; to the contrary, “they have a duty to prevent the occurrence of disturbances,” and in the school context “the level of disturbance required to justify official intervention is relatively lower in a public school than it might be on a street corner.”

Applying these principles to the “evidence of nascent and escalating violence” on the campus, the Court of Appeals ruled in favor of the one remaining defendant (the assistant principal) and dismissed the lawsuit. The Court emphasized that the measures adopted by the administrators were not based on “an “urgent wish to avoid the controversy” (as in Tinker) or as “a trumped-up excuse to tamp down student expression,” but were designed to avert a real risk of violence among students. Noting the “events of 2010 took place in the shadow of similar disruptions a year earlier, and pitted racial or ethnic groups against each other,” the Court concluded the “school’s actions presciently avoided an altercation” and were lawful.

The Court considered other important factors that are important reminders of “best practices” in similar circumstances:

1. Unlike in Tinker, “school officials here explicitly referenced anticipated disruption, violence, and concerns about student safety in conversations with students at the time of the events, in conversations the same day with the students and their parents, and in a memorandum and press release circulated the next day.” Explaining the basis for a decision, at the time it is made, can be critical if the decision is scrutinized later. The record in Morgan Hill demonstrated the Tinker standard was well known by the involved administrators, they paid attention to it, and they explained its application at the point of decision.

2. The “actions were tailored to avert violence and focused on student safety” because the administrators “restricted the wearing of certain clothing, but did not punish the students.” There is “greater constitutional latitude to suppress student speech than to punish it,” and the Court emphasized the focus was solely on averting violence and disruption and not on disciplining students.

3. The administrators addressed each student and article of clothing individually, and did not “enforce a blanket ban on American flag apparel.” They allowed two students to return to class “when it became clear that their shirts were unlikely to make them targets of violence.” The Court found it significant that the administrators “distinguished among the students based on the perceived threat level, and did not embargo all flag-related clothing.”

The Court recognized that “school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights,” and that judges are supposed to give deference to “schools’ decisions in connection with the safety of their students even when freedom of expression is involved.”

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