Claim: A federal court upheld a ruling that school officials acted correctly in requiring students to remove clothing featuring U.S. flag designs on Cinco de Mayo.
Examples: [Collected via e-mail, February 2014]
Origins: In May of 2009, a Cinco de Mayo event at Live Oak High School (a school with a history of violence and gang issues) in Morgan Hill, California, sparked a clash between white students and students of Mexican descent; and the following year five
School officials, concerned that the five students' U.S. flag garb would provoke hostilities and fights with Mexican-American students, directed those students to change their clothing (by removing their bandanas and turning their shirts inside-out) or go home, as outlined in court documents:
Live Oak had a history of violence among students, some gang-related and some drawn along racial lines. In the six years that Nick Boden served as principal, he observed at least thirty fights on campus, both between gangs and between Caucasian and Hispanic students. A police officer is stationed on campus every day to ensure safety on school grounds.
On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus
At least one party to this appeal, student M.D., wore American flag clothing to school on Cinco de Mayo 2009. M.D. was approached by a male student who, in the words of the district court, "shoved a Mexican flag at him and said something in Spanish expressing anger at [M.D.'s] clothing."
A year later, on Cinco de Mayo 2010, a group of Caucasian students, including the students bringing this appeal, wore American flag shirts to school. A female student approached M.D. that morning, motioned to his shirt, and asked, "Why are you wearing that? Do you not like Mexicans[?]" D.G. and D.M. were also confronted about their clothing before "brunch break."
As Rodriguez was leaving his office before brunch break, a Caucasian student approached him, and said, "You may want to go out to the quad area. There might be some — there might be some issues." During the break, another student called Rodriguez over to a group of Mexican students, said that she was concerned about a group of students wearing the American flag, and said that "there might be problems." Rodriguez understood her to mean that there might be a physical altercation. A group of Mexican students asked Rodriguez why the Caucasian students "get to wear their flag out when we don't get to wear our flag?"
Boden directed Rodriguez to have the students either turn their shirts inside out or take them off. The students refused to do so.
Rodriguez met with the students and explained that he was concerned for their safety. The students did not dispute that their attire put them at risk of violence. Plaintiff D.M. said that he was "willing to take on that responsibility" in order to continue wearing his shirt. Two of the students, M.D. and D.G., said they would have worn the flag clothing even if they had known violence would be directed toward them.
School officials permitted M.D. and another student not a party to this action to return to class, because Boden considered their shirts, whose imagery was less "prominent," to be "less likely [to get them] singled out, targeted for any possible recrimination," and "significant[ly] differen[t] in [terms of] what [he] saw as being potential for targeting."
The officials offered the remaining students the choice either to turn their shirts inside out or to go home for the day with excused absences that would not count against their attendance records. Students D.M. and D.G. chose to go home. Neither was disciplined.
In the aftermath of the students' departure from school, they received numerous threats from other students. D.G. was threatened by text message on
While the Supreme Court has ruled that public school students have the right to engage in nondisruptive free speech, that ruling "does not require that school officials wait until disruption occurs before they act," Ware said in his ruling dismissing the students' lawsuit.
The panel held that school officials did not violate the students' rights to freedom of expression, due process, or equal protection. The panel held given the history of prior events at the school, including an altercation on campus, it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real. The panel held that school officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances.
The court's action sets no legal precedent but it raises questions about whether students have the same free-speech rights as adults on matters that may provoke controversy.
Many school officials in recent years have told students they may not wear the Confederate flag on their clothing at school or display anti-gay messages. The case of Dariano vs. Morgan Hill Unified School District drew greater attention because an American flag was considered the provocative message.
In turning down the Dariano case, the court as usual did not explain its reasoning for refusing to hear an appeal. But the court's action is likely to be read as strengthening the authority of school officials to suppress the display of clothing or other symbols that might trigger trouble.
Egelko, Bob. "Court Backs Morgan Hill School in Flag Dispute." San Francisco Chronicle. 12 November 2011. Strauss, Valerie. "Court: School Can Ban American Flag Shirts on Cinco de Mayo." The Washington Post. 13 November 2011. Savage, David G. "High Court Lets Stand School's Ban on U.S. Flag Shirts on Cinco de Mayo." Los Angeles Times. 30 March 2015. Walsh, Mark. "School's Ban on U.S. Flag Shirts on Cinco de Mayo Upheld." Education Week. 27 February 2014. KNTV [San Jose, CA]. "Students Kicked Off Campus for Wearing American Flag Tees." 6 May 2010.