NINTH CIRCUIT UPHOLDS BIASED SCHOOL CENSORSHIP
On February 27, the United States Court of Appeals for the Ninth Circuit upheld a district court ruling that denied a civil rights suit by high school students against the Morgan Hill Unified School District. Parents and students from the school objected when school administrators demanded that students remove clothing bearing images of the American flag during a school-sanctioned Cinco de Mayo celebration. The school allowed students to wear apparel containing images of the Mexican flag but not of the American flag. In a decision that defies logic and the First Amendment, the Ninth Circuit upheld the censorship and the school’s discriminatory actions against the American flag bearing students.
Live Oak High School, a part of the Morgan Hill Unified School District, in Northern California is a very rough place, suffering from a long history of racial violence. In the Dariano v. Morgan Hill case record, Principal Nick Boden revealed that on no fewer than thirty occasions Caucasian and Hispanic students had violent run-ins at the school. The record reveals that certain Hispanic students objected to apparel containing images of the American flag and confronted the students who wore that apparel, stating, in one instance, “Why are you wearing that? Do you not like Mexicans[?]” School officials asked the students wearing American flag attire to either turn their shirts inside out or go home with excused absences. While students wearing the American flag were given those instructions, those wearing the Mexican flag were not asked to remove those flag images or go home.
The Ninth Circuit held that Live Oak High School’s need to maintain decorum trumped the rights of those who wished to express their love of America by wearingimages of the flag. School officials testified before the district court that they would have asked students wearing the Mexican flag to remove it if they thought it elicited a negative reaction from other students, but the record does not include reference to a single instance in which a school official asked a student to remove an image of the Mexican flag.
Although First Amendment precedent on point does favor allowing school officials to prohibit speech disruptive of the school’s educational mission that same precedent requires, public schools, entities of the state, to tolerate all manner of expression that does not interfere with the educational mission.
The American flag has flown on school flag poles as far back as the first state school houses in America. The flag is emblematic of the liberties protected by the Constitution of the United States and of the laws of the land. When students rise to condemn the American flag, that is their right, much as the notion is repugnant to those of us who love the Constitution and the American flag, but when students demand that those who wear clothing showing their pride and love for this country remove that clothing, they are trenching on the non-disruptive freedom of expression that is protected by the First Amendment, including in public schools.
Just as those few Hispanic students at Live Oak High School have a right to dislike the flag of the country in which they are so fortunate to live, the American students at that school have an equal right to love their country and take pride in wearing attire that bears the image of the American flag.
The wearing of the image of the American flag is not in and of itself disruptive. The irrational reaction of some students to that image is. Those reactive students, not the ones peacefully wearing the emblem of their country, are the source of the disruption and should be removed from the school. It is not the image of the flag but the peculiar reaction of some who dislike it that is the disruption that offends school decorum.
The essential lesson neither the Ninth Circuit learned, nor Live Oak High School is teaching, is one of tolerance for the views we dislike. In public schools, where attendance is mandatory to avoid violation of truancy laws, children of all political stripes must abide in peace together. If Hispanic students, proud of their heritage, wish to wear images of the flag of Mexico or some other Latin American country or of Spain, that is a form of non-disruptive expression that the public school must tolerate.
If American students take pride in their country and express that pride by wearing clothing bearing the American flag, that too is a form of non-disruptive expression that the public school must tolerate. In neither instance, if a student becomes disruptive or violent because of hatred for those images should the wearers’ rights be violated to appease the violent student’s demands. Rather, in this as in so many other instances of our world turned upside down, the disruption stems not from the flag but from the violent reactor and that person should be removed from the school.
The precedent established in Dariano v. Morgan Hill is a dangerous one. Indeed, it not only violates the speech rights of those who wish to convey a peaceful message of pride but it also sustains an environment that will lead to more school violence, not less. It encourages schools to coddle the violence prone, the bullies who lack tolerance, rather than defend the non-violent. It elevates the “rights” of the intolerant over the peaceable. Perhaps the plaintiffs will appeal this decision, and perhaps the United States Supreme Court will see fit to reverse the wayward course of the Ninth Circuit.
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