SCOTUS sides with CA school banning American flag shirt

Live Oak High SchoolAfter five years of controversy and litigation, the U.S. Supreme Court let stand one of the most controversial rulings to come out of the 9th U.S. Circuit Court of Appeals.

Known for how often it is overturned in the higher court, the 9th Circuit sided last year against California high school students who claimed their freedom of speech had been infringed. Wearing American flag shirts in the midst of school Cinco de Mayo celebrations, they were confronted with threats of violence. To defuse the situation, administrators required some students either to turn their shirts inside out or go home.

“The unanimous three-judge panel said past problems gave school officials sufficient and justifiable reasons for their actions,” CBS San Francisco reported. “The court said schools have wide latitude in curbing certain civil rights to ensure campus safety.”

Writing for the panel, Judge M. Margaret McKeown denied the court’s role was to “second-guess the decision to have a Cinco de Mayo celebration” or to question “the precautions put in place to avoid violence.” Given past tensions between white and Hispanic students, “it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

Facts over principles

Supreme Court watchers had expected polarized reactions if the court chose to take up the case. But it opted to let the 9th Circuit’s decision stand. As is customary, the court declined to explain its choice.

But the particulars of the case may have contributed to that decision. All the student plaintiffs have graduated from Live Oak High School, located in Morgan Hill. According to the Los Angeles Times, the school’s former principal retired and recently died of a heart attack.

But, as the Times noted, even though no new precedent has been created, the Supreme Court’s punt on the issue left open “questions about whether students have meaningful free-speech rights on matters that may provoke controversy.”

What analysts do know is the court lacked enough support to reconsider the 9th Circuit’s reliance on Tinker v. Des Moines Independent Community School District, a 1969 case that established guidelines for when schools could cramp free speech out of a concern for students’ physical safety.

“The Supreme Court would have had to revisit the precedent to take the case,” the San Jose Mercury News observed. Steve Betando, superintendent of the Morgan Hill Unified School District, drove that point home in a statement. “This case has never been about the American flag, which Live Oak proudly flies above our school every day,” he said, according to the Mercury News. “This case has always been about protecting the safety of students.”

Bipartisan dismay

Although the facts of the case have contributed to California’s ongoing culture battle over identity politics, the principles at stake drew the First Amendment sympathies of an ideologically united front of constitutional scholars. Republican legislators and conservative activists dominated last year’s unsuccessful push to get the 9th Circuit to re-hear the case.

But by the time the case crossed the Supreme Court’s desk, plaintiffs counted among their supporters nationally recognized Southland law professors from across the political spectrum — including UC Irvine School of Law Dean Erwin Chemerinsky, Chapman University law professor John Eastman and UCLA law professor Eugene Volokh.

In the wake of the plaintiffs’ defeat before the 9th Circuit, Volokh himself had cautioned the Tinker decision constitutionally could protect what many critics of the ruling called outright bullying and intimidation:

“This is a classic ‘heckler’s veto’ — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. ‘Heckler’s vetoes’ are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker’s ‘forecast substantial disruption’ test, such a heckler’s veto is indeed allowed.

“The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.”

Until that kind of fact pattern comes before the Supreme Court again, California parents and students will have to brace themselves for just such an outcome.


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  1. Dude
    Dude 31 March, 2015, 11:08

    The latinos were the ones inciting violence. Why weren’t they told to get rid of their Mexican flag as well? It’s OK in the US for a Mexican to chant, “MEXICO!, MEXICO!” and wave another country’s flag at American students, but the American students get censored by the latino principle for wearing t-shirts with the American flag??? And the circuit court and SCOTUS agree with that? I’m so glad we have the 2nd Amendment because another civil war is coming.

    Reply this comment
  2. NorCal Libertarian
    NorCal Libertarian 31 March, 2015, 13:00

    All this “stuff” courtesy of gutless politicians who don’t want to stick to their guns and protect the Constitution of OUR country. Well all I can say is that you all are reaping what you have sowed so deal with it…or have the guts to vote those who are not doing their jobs according to the U.S . and California constitutions…out of office!

    Reply this comment
    • Dude
      Dude 31 March, 2015, 14:49

      We’d like to, but there aren’t enough Americans to override the liberals and foreigners in our state. And don’t let them con you; These people are voting. I’ve seen it.

      Reply this comment
  3. Bill Gore
    Bill Gore 31 March, 2015, 15:25

    Yes, the double standard is galling, it is meant to be. Our country’s ‘policy’ of unrestricted immigration from latin america fulfills a number of agendas. It is weaponized demographic change aimed directly at the american lower middle class-‘the trades’-which are fatally undercut by vast amounts of rock-bottom labor. Our elites, btw, have always had a supreme contempt for the working class…Unrestricted immigration also installs a permanent socialist voting block, which has to be continually ‘re-educated’ to maintain a sense of racial grievance. Otherwise their children inexorably become as obese and apathetic as us anglos, cruising up and down the aisles of COSTCO…Finally these policies are emptying out the mexican and central american landscape to the benefit of….yup, american multinational corporations. Amazing!

    Reply this comment
  4. desmond
    desmond 31 March, 2015, 15:56

    Message to non celebratory kids. Stay home from school on May 5 and watch “Death Wish” with Charles Bronson.. It is a feel good story.

    Reply this comment
  5. LGMike
    LGMike 31 March, 2015, 17:33

    This is a case of the school not doing its job of teaching and providing a safe environment by not prohibiting a celebration of a minor victory during a battle in a foreign country that the US was it a direct participant in. It could and should have NOT allowe’d the event in the first place, only allowed a brief mention and discussion in an appropriate history class.

    Reply this comment
  6. Keep da Peace
    Keep da Peace 1 April, 2015, 08:43

    Sadly, students who were incited by patriotism were told they can exercise their rights only if it doesn’t cause a problem. There are times when it is appropriate to yell “Fire!” in a crowded theater.

    Reply this comment
  7. Dyspeptic
    Dyspeptic 1 April, 2015, 15:54

    The headline of this article is blatantly misleading. Denial of certiorari should never be interpreted as SCOTUS taking sides. There are many reasons the black robed sophists of our highest court decline to hear cases. Perhaps their docket is full for the remainder of this very crowded judicial session. They do have some very important, controversial and complicated cases related to Obamacare and Executive amnesty to wade through after all.

    On the other hand, it’s distressing but not surprising that the arrogant and tyrannical DemocRat appointees to the embarrassing Ninth Circuit would give the back of their hand to free speech rights. The Left has always had contempt for free speech and used it cynically to advance their agenda. When it impedes their agenda they stomp on it like the jackbooted hypocrites they are.

    Reply this comment
  8. S Moderation Douglas
    S Moderation Douglas 3 April, 2015, 06:24

    Why are people “wearing” our flag on their tee shirt anyway?

    US Code, Title 4, p8

    (j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.

    Or, for that matter, driving around with a flag mounted in the bed of your pickup. Flag code doesn’t have the force of law, but it’s about respect

    Reply this comment

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