A Sharp Dissent Over a School’s Curb on American Flag Shirts

By Mark Walsh — September 18, 2014 2 min read
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Over the strong dissent of three judges, a full federal appeals court has declined to rehear a case brought by California high school students who were barred from wearing American flag apparel during a Cinco de Mayo celebration at their school.

The dissent said a ruling backing administrators “permits the will of the mob to rule our schools.”

An administrator had prohibited the apparel, citing hostilities between white students and those of Mexican descent.

The case stems from the Cinco de Mayo celebration of Mexican heritage at Live Oak High School in the Morgan Hill Unified School District in 2010. The previous year’s event had sparked a minor clash between white students and students of Mexican descent.

At the 2010 event, several white students wore American flag shirts to school, prompting talk among some students that the shirts were intended to provoke Mexican or Mexican-American students. An assistant principal told the white students they had to turn the American flag shirts inside out or go home. Two students and their parents sued, alleging their free speech rights were violated.

On Feb. 27, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld school officials, saying their actions were “tailored to avert violence and focused on student safety.”

On Wednesday, the full 9th Circuit court, made up of 29 active judges, declined to re-examine the panel’s decision.

Three judges dissented from the denial of rehearing in an opinion by U.S. Circuit Judge Diarmuid F. O’Scannlain. He said the school’s actions amounted to support for a “heckler’s veto"—when a speaker is silenced by the reaction of the audience.

“Rather than acting to protect the students who were peacefully expressing their views, Live Oak decided to suppress the speech of those students because other students might do them harm,” O’Scannlain wrote.

The 9th Circuit panel’s “blessing of that reaction, sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them,” he added. “This perverse incentive created by the panel’s opinion is precisely what the heckler’s veto doctrine seeks to avoid.”

O’Scannlain said a “vocal or violent band of students” might suppress shirts bearing the images of Che Guevara, Martin Luther King Jr., Pope Francis, or President Barack Obama.

He said the panel’s decision clashed with student-speech rulings of other federal appeals courts.

Without saying it in so many words, the dissent from the denial of rehearing is likely aimed at the U.S. Supreme Court, meant to prompt the justices to take notice and perhaps take up the case.

The panel’s original decision in Dariano v. Morgan Hill Unified School District is here, but an “amended” panel opinion was released Wednesday as part of the same document that includes O’Scannlain’s dissent.

A version of this news article first appeared in The School Law Blog.