Court Rulings Vary on U.S. Flag and ‘R.I.P.’ T-Shirts at School

By Mark Walsh — November 18, 2011 2 min read
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School efforts to regulate T-shirts with potentially disruptive messages have prompted two rulings by separate federal courts, with administrators winning one case but suffering a setback in the other.

A federal district judge in San Francisco earlier this month upheld administrators who barred students from wearing American flag T-shirts to avoid conflicts on Cinco de Mayo, a day when other students were celebrating their Mexican heritage.

U.S. District Judge James Ware found that there had been tensions between white and Hispanic students at Live Oak High School, in the Morgan Unified School District, including altercations on Cinco de Mayo in 2009.

When the 2010 day rolled around, administrators feared that the tensions would resume because a number of students wore T-shirts depicting the U.S. flag.

“The court finds that ... school officials reasonably forecast that plaintiffs’ clothing could cause a substantial disruption with school activities,” Judge Ware said in his Nov. 8 decision in Dariano v. Morgan Hill Unified School District.

He added that the assistant principal “was warned by two different students that they were concerned that plaintiffs’ clothing would lead to violence. These warnings were made in a context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.”

In the other case, a federal district judge in Omaha, Neb., allowed a lawsuit to go forward that challenges a school’s suspension of students who wore “rest in peace” T-shirts memorializing a recent graduate who was killed in gang-related violence.

School administrators said such shirts were a form of gang-related apparel and that they could attract more gang violence to the schools.

U.S. District Judge Laurie Smith Camp held that the shirt worn by student Dan Kuhr and others at Millard West High School in the Millard school district was not disruptive and was a form of expression protected by the First Amendment.

“A reasonable jury could find that defendants failed to demonstrate that school officials had anything more than an undifferentiated and remote apprehension of a disturbance when they suspended” one student wearing the shirt, Judge Camp said in her Nov. 8 opinion in Kuhr v. Millard Public School District. “The fact that [the student] had worn his shirts for several days without incident supports a finding that no disruption was likely to result.”

(Hat Tip to NSBA’s Legal Clips for both opinions.)

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