A federal judge in California ruled last month that high school students could be sent home for wearing T-shirts that school officials feared could prompt violence. One might think that such inflammatory shirts would have to display extreme messages, such as gang identifications, implications about illegal drugs or perhaps racist messages. Instead, the T-shirts that prompted school administrators to sanction the students depicted images of the U.S. flag. Old Glory was deemed by school officials to be such a volatile symbol that students could be dismissed for displaying it on clothing.
The case emerged from Live Oak High School in California. The students were wearing the shirts on Cinco de Mayo, an important day for the many Mexican-American students at that school. School administrators feared the flag-wearing students’ safety could be in jeopardy at the school, which had some history of ethnic tension.
Decisions interpreting First Amendment free expression protections are quite difficult for judges to make. Add in the need to protect public school students and the context of patriotic symbols, and the decision is more complicated.
The decision was made by Judge James Ware of the Northern California district court. He is a veteran judge who has a Stanford law degree and served in the U.S. Army. He was appointed by President George H.W. Bush in 1990. In his decision, he clearly states his concern for student safety, writing, “Although no school official can predict with certainty which threats are empty and which will lead to violence, the Court finds that these school officials were not unreasonable in forecasting that Plaintiffs’ clothing exposed them to significant danger.”
This reasoning is consistent with the landmark Tinker v. Des Moines free speech case in 1969 that allows school officials to restrict student expression if they believe it would cause “substantial disruption of or material interference with school activities.”
The Tinker decision also declares, however, that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That was the basis for a federal court decision in Michigan in 2003, when a student wore a T-shirt with a photo of George W. Bush and the words “international terrorist” on it. That shirt, too, could well have sparked a disturbance.
Nobody can dispute the need to protect students in a public school setting, but the California ruling seems to turn the First Amendment on its head. It allows those students who might engage in violence to suppress other students who want to express themselves through messages on their clothing. Rhetorically, this decision says the way to stifle expression you don’t like is to create a threatening atmosphere. Such a standard, if allowed to continue, empowers those who would suppress expression at the expense of the speaker. It is difficult to imagine this is what the Founders had in mind when the First Amendment was crafted. Perhaps Live Oak High School could have found a way to protect the flag wearers without banning their expression.
In his decision, Judge Ware pointed out that three federal circuit courts have used the Tinker standard to ban wearing of the Confederate flag in schools where there is racial tension. It could well be argued that the Live Oak school flag wearers also were trying to create ethnic tension by wearing the U.S. flag on Cinco de Mayo. Even if that were the motivation, the question is whether that is reason enough to ban patriotic expression. Either way, it seems awkward to equate wearing the American flag to wearing a Confederate flag. The history and context of those symbols are quite different.
Attorneys for the American flag-wearing students have already filed an appeal of the Ware decision. This case needs to ultimately reach the Supreme Court, regardless of how the Ninth Circuit Court rules. An appellate ruling would only apply in that region of the country. School administrators and students across the nation need more Supreme Court guidance on student free expression. The Tinker ruling needs an update so the Supreme Court can address the inconsistency that allows one student to label a sitting president a terrorist while sanctioning another student who displays our nation’s flag.
Jeff McCall is a professor of communication at DePauw University and author of “Viewer Discretion Advised: Taking Control of Mass Media Influences.”