On Wednesday, five California high school students were ordered by their vice principal to remove their T-shirts and bandannas displaying the American flag. Apparently, the school’s administration believed that on Cinco de Mayo, a holiday celebrating Mexican heritage and pride, exhibiting the American flag in this way was "incendiary" and offensive to Mexican-American students. Rather than risk suspension or turn their T-shirts inside out, the five students went home.
The New York Daily News reported one of the students, Daniel Galli, as explaining that the administration "said we could wear [the American flag] on any other day, but today is sensitive to Mexican-Americans because it’s supposed to be their holiday."
FIRE generally does not take positions on high school cases; our purview is the university setting. Although often wrongfully conflated, the standards governing First Amendment rights at high schools and universities are distinct, reflecting the differences in the purposes of these schools and the maturity levels of the students. However, the events at Live Oak High School provide an appropriate backdrop for considering America’s tradition of protecting citizens’ free speech, including their relationship to the U.S. flag. Several Supreme Court cases involving high schools illustrate why a student’s freedom to express her patriotism—or lack thereof—cannot be left to the whims of school administrators.
My fellowship at FIRE is named after Justice Robert H. Jackson, who authored the famous Supreme Court opinion overturning a school board requirement that students salute the flag. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-42 (1943), Justice Jackson explained that the First Amendment shields unpopular views from being silenced by majorities. Patriotism cannot be imposed forcefully upon students, nor can a citizen’s conscience be intruded upon by those in power. Justice Jackson further remarked that involvement of the flag rendered the case emotionally—but not legally—difficult to decide:
The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes…. [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
Almost three decades later, the Supreme Court again ruled that patriotism cannot be imposed upon students. This time, the Court went further. It held that students may express anti-government sentiment at school, as long as they do not create a substantial disruption. In the seminal case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court declared that students had a First Amendment right to passively wear black armbands symbolizing opposition to the Vietnam War. Tinker articulated a test in which schools may not single out certain symbolic speech for censorship unless the speech materially interferes with classroom activity. The Court found it particularly "relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance":
Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.
Together, Barnette and Tinker demonstrate that students’ feelings toward their country cannot be dictated or silenced. The substantial-disruption test articulated in Tinker sets a high threshold for suppressing speech. Speech that simply offends students must be tolerated in order to live in a society where those in power cannot, as noted in Barnette, "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."
Twenty years ago, in Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court further held that states cannot criminalize flag burning in order to elevate the flag as a symbol of national unity. Yet, despite this ruling, or perhaps because of it, the American flag serves a symbol of patriotism and national pride. Yesterday, on Cinco de Mayo, a California high school deemed it offensive to students to display that patriotism. This decision, from a First Amendment perspective, resembles the decision of the administrators in Tinker, who found protesting the Vietnam War offensive to their sensibilities. Cultural sensitivity may be an admirable goal, but history has taught us that protecting the right to peacefully express unpopular or offensive views is paramount. Students’ ability to express their feelings about their country cannot depend on the feelings of their fellow classmates.
By Wednesday night, the school district involved had released a statement opposing the actions of Live Oak High School administrators. The school board’s statement reflects an appreciation of Barnette‘s and Tinker‘s precedent regarding a high school’s legal obligations to its students. The American flag is a symbol that has a uniquely powerful ability to evoke an emotional response. This is all the more reason to ensure that the government cannot dictate how and when the flag is displayed.