A California high school is allowed to bar students from wearing T-shirts with the American flag on them during a Cinco de Mayo event after a 2010 incident involving white and Mexican students, the Ninth Circuit Court of Appeals ruled on Thursday.
The court found that administrators had reason to believe displaying the American flag would lead to violent confrontation, so it was justified in removing the students displaying it. Because only students wearing the American flag were threatened, students could still wear other national flags, such as Mexico’s, the court found.
The case notes two separate instances giving the school the authority to ban the image of the flag: In 2009, Mexican students threatened violence when other students started chanting “USA” around an American flag one year. “They are being racist. F*** them white boys. Let’s f*** them up,” one Mexican student told an assistant principal. The following year, in response to an American-flag T-shirt, some students threatened that “some gang members would come down from San Jose to ‘take care of’ the students’” wearing the shirt.
Citing a 1969 Supreme Court ruling, Tinker v. Des Moines Indep. Comm. School Dist., the court found that school authorities have the right to ban such items or actions if they can “forecast substantial disruption of or material interference with school activities.”
The decision from the circuit court, considered the country’s most liberal, may be problematic on First Amendment grounds. Eugene Volokh at the Washington Post notes that the ruling is an example of “heckler’s veto,” in which speech can be limited to prevent violence from a group of individuals, rather than punish the individuals threatening the violence. He takes issue with the decision:
This is especially [worrisome] because behavior that gets rewarded gets repeated. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?