Yesterday, the Supreme Court refused to hear the appeal of a group of California High School students who had been forbidden from wearing American flag t-shirts on Cnico de Mayo, a case that sparked a nationwide debate over the the issue of student free speech rights versus the extent to which school authorities have the power to regulate behavior under the banner of maintaining discipline:
WASHINGTON — The U.S. Supreme Court on Monday left intact an appeals court ruling that school officials in California did not violate the free speech rights of students by demanding they remove T-shirts bearing images of the U.S. flag at an event celebrating the Mexican holiday of Cinco de Mayo.
The court declined to hear an appeal filed by three students at Live Oak High School in the town of Morgan Hill, south of San Francisco. School staff at the May 5, 2010, event told several students their clothing could cause an incident. Two chose to leave for home after refusing to turn their shirts inside out.
The school had been experiencing gang-related tensions and racially charged altercations between white and Hispanic students at the time. School officials said they feared the imposition of American patriotic imagery by some students at an event where other students were celebrating their pride in their Mexican heritage would incite fights between the two groups.
Lawyers for the students said that the fear that the T-shirts would offend others did not trump free speech rights because the act of wearing the shirts did not rise to the level of incitement to violence.
(…)
In the February 2014 ruling, the San Francisco-based 9th U.S. Circuit Court of Appeals said officials did not violate the U.S. Constitution’s First Amendment, which guarantees freedom of speech. School officials acted out of legitimate concerns of violence when they sent a handful of students home for refusing to change their American flag-embellished apparel, the court said.
Several legal observers, including a group led by UCLA Law Professor Eugene Volokh raised concerns about the Ninth Circuit’s ruling in this case because of the extent to which it seemed to give the so-called “heckler’s veto” a role in deciding how far administrators could go in limiting the free speech rights of students. While it was apparently the case that there had been incidents of violence and racial tension in the school in the months leading up to the incident in question, the Court’s ruling appeared to be saying that this gave school authorities the right to limit student speech because of how other people might react to it. For obvious reasons, the case itself became prominent because of the fact that school authorities were banning students from wearing a shirt depicting the American flag on a “Mexican” holiday, albeit one that is more popular in the United States than it is in Mexico, meant that the case soon became part of a larger political controversy. This was especially true on the right, where it often got folded into the larger debate over immigration and the integration of newer immigrants into American society and culture.
On some level, this outcome isn’t entirely surprising given the direction that the Supreme Court has been taking on the issue of student First Amendment rights in recent decades. In the mid-20th Century, of course, the Court had ruled that students could not be forced to recite the Pledge of Allegiance in the landmark case West Virginia State Board of Education v. Barnette. Two decades later, the Court ruled in Tinker v. Des Moines Independent Community School District that school districts could not discipline students who had taken part in a protest against the Vietnam War on school grounds during school hours. In the years since Tinker, though, the Court has issued rulings that have seemed to reinforce the authority of school authorities to regulate student speech in the name of school discipline. In Bethel School District v. Fraser, for example, the Court upheld a school’s decision to discipline a student who had given a speech laced with sexual inneundo during a student assembly, even though the speech itself was not necessarily obscene. In Hazelwood v. Kuhlmeier, the Court sided with school authorities over students in a case involving regulation of the content of a student newspaper. Most recently, in Morse v. Frederick, the Court had ruled in favor of school authorities who had disciplined a student over speech that took place outside of school ground despite the fact that there was no evidence that the speech had disrupted the school in any way. Since then, the Court has largely dodged cases dealing with issues involving First Amendment rights in the context of public education, including just last year when the Court declined to hear the appeal of a school district that had attempted to discipline a group of students who had been handing out bracelets with the message ”I ♥ boobies,” as part of a breast cancer awareness campaign. And now, of course, the denial of this appeal is added to this list.
As I’ve said before, we can’t be sure why the Court denies an appeal in a particular case beyond the very simple fact that there were not four Justices who voted to hear the case. Why that happened to be attributable to anything from the fact that there is some kind of procedural or factual flaw with the case that they believes makes it inappropriate for Supreme Court review to the possibility that the Justices do no believe it is necessary for the Court to speak any further on this issue at this time. It’s unfortunate the Justices did not accept the case, though, because it raises important issues that students and school administrators have to deal with on almost a daily basis. Admittedly, school administrators do need to have some authority to regulate behavior in order to ensure that the school is able to achieve its prior mission of education. The question is how far they are allowed to go in exercising that authority and, in this case, it seems clear that the school administrators in California went a step too far. Even if it were true that wearing the American flag on this particular day may have provoked a response from some other portion of the student body, that alone should not be a basis for squelching activity that is clearly protected by the First Amendment. Because if that’s the criteria, then we are indeed giving the heckler’s a veto over speech, and that’s a road that we really ought not travel down.
