A surprising first amendment case

"Not Safe" to Display an American Flag in an American High School

Eugene Volokh • November 10, 2011 9:46 am

Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a “heckler’s veto” in K-12 school: Schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn’t raised in this federal lawsuit.

Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong. Here’s an excerpt from the court opinion describing the facts that led the court to uphold the restriction:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican students walking around with the Mexican flag. One Mexican student shouted “fuck them white boys, fuck them white boys.” Vice–Principal Rodriguez directed the minor to stop using such profanity. The minor responded by saying “But Rodriguez, they are racist. They are being racist. Fuck them white boys. Let’s fuck them up.” Vice–Principal Rodriguez removed the minor from the area....

When Plaintiff M.D. wore an American flag shirt to school on Cinco de Mayo 2009, he was approached by a male student who shoved a Mexican flag at him and said something in Spanish expressing anger at Plaintiffs’ clothing....


On the morning of Cinco de Mayo 2010, a female student approached Plaintiff M.D., motioned to his shirt, and said “why are you wearing that, do you not like Mexicans?” Plaintiffs D.G. and D.M. were also confronted about their clothing by female students before [brunch] break....

Defendant Rodriguez was leaving his office before brunch break on May 5, 2010, a Caucasian student approached him and said, “You may want to go out to the quad area. There might be some — there might be some issues.”

During brunch break on May 5, 2010, another student called Vice–Principal Rodriguez over to a group of Mexican students and said that she was concerned about a group of students wearing the American flag and said that “there might be problems.” Vice–Principal Rodriguez took her statement to mean that there might be some sort of physical altercation. A group of Mexican students also asked Defendant Rodriguez “why do they get to wear their flag when we don’t get to wear our flag?” ...

While meeting with Plaintiffs about their attire, Defendant Rodriguez explained that he was concerned for their safety. Plaintiffs did not dispute that their attire put them at risk of violence. Plaintiff D.M. stated that he was “willing to take on that responsibility” in order to continue wearing his shirt....

Following Plaintiffs’ departure from school they received numerous threats from other students. Plaintiff D.G. received a threat of violence via text message on May 6th. He received another threatening call from a male saying he was outside of D.G.‘s home that same night. Plaintiffs D.M. and M.D. also were threatened with violence. A student at Live Oak overheard a group of male students saying that some gang members would come down from San Jose to “take care of” Plaintiffs. Based on these threats, Plaintiffs did not go to school on May 7....

Plaintiffs contend that they are entitled to summary judgment because the undisputed evidence shows that they were treated differently than students wearing the colors of the Mexican flag, and that this distinction was based on the unpopularity of their viewpoint. Defendants respond that Plaintiffs have offered no evidence demonstrating that students wearing the colors of the Mexican flag were likely to be targeted for violence, and that officials treated all students for whose safety they feared in the same manner.

When the government infringes upon protected speech in a discriminatory manner, such conduct may constitute a violation of the Equal Protection Clause as well as the First Amendment. See Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972). “[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny it those wishing to express less favored or more controversial views.”

Here, for the reasons discussed above, Defendants have provided a non-discriminatory basis for asking Plaintiffs to remove their American flag attire. Defendants have put forth significant evidence demonstrating that Plaintiffs were asked to change clothes in order to protect their own safety. Plaintiffs have not offered any evidence demonstrating that students wearing the colors of the Mexican flag were targeted for violence. To the contrary, the undisputed evidence shows that Plaintiffs were the only students on campus whose safety was threatened that day, at least to the knowledge of Defendants. In addition, Defendant Rodriguez has testified that he did not see any students wearing the Mexican flag on their clothing during the day. He also testified that he did not see any students with Mexican flags displayed on their person until he saw photos in the newspaper in the days following Cinco de Mayo.