The 9th Circuit and the American Flag

 The 9th Circuit Court of Appeals- the traditional whipping boy of conservatives and the Supreme Court- recently handed down a decision which has offended the sensibilities of most patriotic Americans.  Specifically, this is being portrayed in some media circles as the court banning the American flag in schools.  Nothing can be further from the truth.  Many of these articles leave out some pertinent facts that should shed some light on this case.

But first, some background.  The high school in question- Live Oaks- in northern California has a history of racial tension between white and Hispanic students.  In 2009, a group of white students pinned a makeshift American flag to a tree and chanted “USA! USA!” towards a group of Hispanic students.  They responded with threatening profanities which necessitated the removal of one Hispanic student from school.  According to school officials, in the previous six years there had been 30 racial incidents involving tensions between white and Hispanic students in school.  In fact, the situation is apparently so bad that there is a police officer posted on the high school’s grounds during school hours.

As part of celebrating cultural heritage, the school was celebrating Cinco de Mayo, a traditional Mexican holiday.  According to school officials, their celebration in much like their celebration of St. Patrick’s Day or Oktoberfest, although one has to question how many students there are of Irish or German descent at the school.  In 2010, several students wore American flag T-shirts to school on Cinco de Mayo Day.  The facts are unclear whether this was intended as a statement against the Hispanic students, but we do know that one student (whose parents brought this suit) was involved in a previous racially charged incident on campus.

As the 9th Circuit notes, the student was approached by another student earlier in the day about his shirt.  During the lunch break, the assistant principal was approached by another student about fears of impending violence involving at least one of these white students.  It was then that he and others were approached.  Fearing violence and a disturbance, the student was given the choice of turning his shirt inside out or going home with no disciplinary repercussions.  Other students who were wearing American flags on their shirts were allowed to return to class without turning their shirts inside out, nor were they given the option of leaving.  In other words, there was nothing the matter with them wearing the American flag on their shirts.  Furthermore, two students did take the “go home” option and left with no resulting disciplinary action.

The 9th Circuit decided that a 1969 case- Tinker vs. Des Moines School District- was controlling here.  In that case, the Supreme Court ruled that although a student’s First Amendment rights were not surrendered at the school gates, school officials could impinge on those rights if there was a serious threat to school order and discipline.  That case involved the wearing of black armbands to protest the war in Vietnam at the time.  Although somewhat controversial, it hardly rose to the level of “threats of violence” in the present case.  Put another way, if a student’s free speech rights can be be abrogated in a low level of threat atmosphere as had happened in 1969, then their “rights” can be abrogated in a more serious threatening situation as had happened in 2010 in this case.

Taking a more recent case- Morse vs. Frederick– from 2002, the Supreme Court ruled that a school can ban certain student speech at school sponsored events even if they do not occur on school grounds.  That was the infamous “Bong Hits 4 Jesus” case.  That case hardly involved threats of violence or disorder, yet student free speech rights were resistricted nevertheless.  Taken together, there is hardly a strong string of court cases stating that a student has absolute free speech rights.  Hence, being bound by Supreme Court precedence in this area, the Ninth Circuit could reach no other conclusion.  Ironically, it was the 9th Circuit that ruled the student’s rights were violated in the “Bong Hits 4 Jesus” case. 

What gets people upset is the fact that the American flag in this case was the “message.”  Some have commented on the so-called “heckler’s veto” where threats of violence simply have the effect of shutting down down speech or chilling its free expression.  Even here in many other contexts the school officials have Supreme Court precedent on their side.  For example, the Court has ruled that police can shut down demonstrations and protests proactively to maintain order and minimize the risk of violence.  Ironically (again), the “heckler’s veto” has been used as a justification for enacting laws banning the burning or desecration of the American flag as a means of protest.  My guess is that those opponents of the heckler’s veto in this case would readily use it in other contexts more “supportive” of the American flag.

Furthermore, the threats of violence present in this case were quite real.  They were so real that at least two students stayed home the following day.  Some will say that the Hispanic kids simply won through their threats, but the point is that at least two students and their parents believed the threats of violence were real enough which buttresses the school administration’s observations, perceptions and fears on the day in question.

Regardless, the portrayal of this decision in the press is somewhat disingenuous and leaves the impression that the 9th Circuit was insensitive to either the white students, the American flag, Free Speech rights, or all of the above.  Instead, they were simply following through on precedence in this area- precedent they are bound to follow as a  lower court.  The facts are that they were not insensitive to the white students; they were sensitive to the fears of school administrators.  They were not insensitive to the American flag; they ruled that in this case given these sets of facts and the history, the school administrators acted reasonably.  Furthermore, other students wearing the American flag on their shirt were allowed to go to class unimpeded.  It was simply this one particular student whom the school moved to protect.

One very important facet of this case overlooked is the reaction by the Hispanic students.  It is a true shame when proudly wearing an American flag on one’s shirt is perceived as a threat or a statement of alleged racism towards a group.  These Hispanic students are (hopefully) benefitting from an American education administered under that very flag.  And if a school administration can move to maintain or instill order and discipline, they had every right to go after those students making the threats.  We know from the record there were statements heard, text messages received and a threatening phone call made.  What we do not know from the record is if any of the Hispanic students making the threats were disciplined.

Finally, there is a solution.  This case is a great advertisement for mandatory school uniforms.  In this way, if the white student showed up wearing an American flag T-shirt, he could be sent home for being out of uniform.  The same would apply to the Hispanic student showing up in the red, white and green of the Mexican flag.  Also, the school could just cease the celebration of ethnic holidays like Cinco de Mayo, St. Patrick’s Day or Oktoberfest especially in light of the history of racial tensions at the school.  That flag at the center of this “controversy” represents one United States of America, not a series of hypenated Americans.

[NOTE:  This writer is a strong advocate of free speech rights and has worked with various groups towards those ends.  Further, this writer is no fan of the Ninth Circuit Court of Appeals which is regularly overturned on appeal to the US Supreme Court.  However, given the facts particular to this case and the relevant case law, their decision is understandable.]