In Dariano v. Morgan Hills Unified School District, 767 F.3d 764 (9th Cir. 2014), the 9th U.S. Circuit Court of Appeals ruled that public school officials did not violate the First Amendment when they required several students wearing T-shirts of the American flag to remove their T-shirts on Cinco de Mayo, a Mexican holiday.
Students ordered to remove American flag T-shirts on Cinco de Mayo
On May 5, 2010, several Caucasian students wore T-shirts with the American flag on Cinco de Mayo. One student told an assistant principal that there might be some problems with students wearing those T-shirts. Another student asked the assistant principal why the Caucasian students “get to wear their flag out when we don’t get to wear our flag?”
The school had experienced tension between Caucasians and Hispanics at the school and there was tension during last school year on Cinco de Mayo. The assistant principal ordered the students to remove their T-shirts.
Later, the students filed a lawsuit, alleging that their First Amendment free speech rights had been violated. A federal district court dismissed their lawsuit.
Court found school could reasonably forecast substantial disruption
On appeal, the 9th Circuit affirmed, finding that under Tinker v. Des Moines Independent Community School District (1969), the assistant principal could reasonably forecast that the continued wearing of those T-shirts could cause a substantial disruption at school.
According to the panel, there was evidence of impending violence and the school officials acted reasonably in the name of student safety.
The students petitioned for full panel review before the 9th Circuit.
Dissent said opinion condoned ‘heckler’s veto’
The appeals court denied full panel review, but Judge Diarmuid O’Scannlain wrote a dissenting opinion that accused the majority of suppressing student speech and condoning the “heckler’s veto.”
According to O’Scannlain, the students wearing the American flag T-shirts should not have their free-speech rights limited by the behavior of other students who don’t like their speech. He wrote that “the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students.”
The students petitioned for review to the U.S. Supreme Court, but the high court denied review in March 2015.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.