The Ninth Circuit Departs From Tinker in Upholding Ban on American Flag T-Shirts in School

Does it violate the free speech clause if a public school allows students to wear t-shirts with a Mexican flag design but bans students from wearing t-shirt with an American flag design? The Ninth Circuit said no, in Dariano v. Morgan Hill Unified School District, decided in February. Julie Hilden spoke in favor of the decision on these pages last March. She said the court was correct to balance the interests involved. However, that is not what the Supreme Court ruled when it decided a very similar issue in 1969.

We were in the middle of the Vietnam War, and the disputes between the hawks and doves did not end with debates in Congress and protests in the streets. They continued in our public high schools. The Supreme Court decision on this issue was Tinker v. Des Moines Independent School District (1969). Some high school students—the doves—claimed a constitutional right to wear black armbands as a symbol to protest the Vietnam War. The Court has long held that the First Amendment protects not only words but also symbols, such as flags, banners, pictures of donkeys and elephants.

The principals of all of of the Des Moines schools sided with the hawks. They adopted a policy, first, to ask any student to remove the armband and, if the student objected, to suspend her until she returned without the armband. The principals imposed no ban on students wearing national political campaigns buttons; some students “even wore the Iron Cross, traditionally a symbol of Nazism.” However, a symbol of peace—it was just too much for the schools. They had to draw the line.

The Court decided against the school district. The Court acknowledged that the nature of the students’ rights is different because a school is not a public forum. However, neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” For example, during a history class about the Civil War, no student would have a right to disrupt the lesson by asserting a right to talk about the Vietnam War. Similarly, the geography teacher can limit discussion to issues of geography that relate to that day’s lesson. However, wearing black armbands (like wearing pierced earrings) does not disrupt the education of the school. The Tinker Court understood this distinction:

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. [Emphasis added]

Tinker made clear that the petitioners, the students wearing armbands—let us call them the doves—were not interfering with anything. Some of the students opposed to the doves—let us call them the hawks—were upset. A “few students [the hawks] made hostile remarks to the children wearing armbands,” but if schools were going to punish anyone, they should punish the hawks. For the whole history of the First Amendment in the Supreme Court, the justices have never approved of a “heckler’s veto.”

Tinker acknowledged that any “word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance.” Nonetheless, the “Constitution says we must take this risk,” and our openness is “the basis of our national strength” and part of the warp and woof of our “often disputatious” society. If the heckler is disturbing the speaker, the law interferes to protect the speaker, not the heckler.

There have been a few cases since Tinker where the Supreme Court has clarified (but not undercut) its holding. For example, a school assembly is also not a public forum. In 1986, the Court held that if the school provides for an assembly, where students could speak on behalf of candidates for student government at this school event, then the school could require the students not to engage in lewd speech.

Two years later, the Court held that if the high school students in a journalism class publish a school newspaper, the high school educators could exercise editorial control over its newspaper. The high school newspaper was not a public forum because it was part of a course for credit. More recently, the Court held that the school could ban “student speech at a school event” from promoting illegal drug use. All of these cases also reaffirmed Tinker.

I quote Tinker at length because the Ninth Circuit in Dariano did not embrace it. Instead, it made up its own rule and sides in favor of the heckler’s veto. It upheld the power of the Morgan Hill Unified School District to order students to cover up the U.S. flag shirts or go home, because, the District claimed, if some students wore those colors on Cinco de Mayo, the 5^th of May, celebrating Mexican heritage and pride, other students might turn to violence. The school ban on the students wearing American flag colors, as the district court explained, was “in order to protect their own safety.”

However, these same school administrators did not ask any students to refrain from wearing the colors of the Mexican flag because, they said, students wearing American flags “were threatened with violence,” but students with Mexican flag colors were not. One might say that the Anglo students were threatened, but the “Mexican students” (the term the court used) were not. Hence, “all students whose safety was in jeopardy were treated equally.”

The court invented a most unusual rule: if hecklers threaten students who do nothing but wear colors that reflect the American flag, the school authorities should restrict the students, not the hecklers. If that is the law, what the lawyers for the principals in Tinker should have advised them was that they could punish the doves if only the hawks had physically threatened the doves. Surely, that cannot be what the Tinker Court intended.

Recall, Tinker found it telling that the school principals did not ban all symbols; they allowed students to wear Democratic campaign buttons even if that upset Republicans. The principals even allowed students to wear a symbol of the Nazis, the Iron Cross. The fact that principals distinguished among the types of buttons that were verboten was evidence that the school principals were banning symbols because of their content, their message. This was not a case where the school principals said, for example, that no students could wear armbands or any other symbols on their school band uniforms because the whole point of uniforms is to be, well, uniform.

Yet, in California, the rule is different. Mexican students can wear Mexican flag colors but others cannot wear American flag colors. Why? The trial court claimed that the Mexican students were threatening the other students but there was no evidence that anyone was threatening the Mexican students.

Let us apply the court’s reasoning to other situations. Assume that some students wear the Star of David and other students object and threaten them. These other students wear the Iron Cross. The Star of David students (perhaps grandchildren of those who barely survived the Holocaust) do not threaten violence. The Ninth Circuit rule would allow the Iron Cross but not the Star of David because only the Iron Cross students threatened violence. As the trial court said in Dariano, to support its restriction of free speech, a male student “shoved a Mexican flag at [a student with an American flag symbol] and said something in Spanish expressing anger at Plaintiffs’ clothing.” The remedy that the Dariano court chose was not to punish the student who “shoved a Mexican flag” at the other student, but to take away the free speech rights of that other student.

That is not what our high schools should be teaching students. We live in a diverse society and, in the words of Tinker, “apprehension of disturbance is not enough to overcome the right to freedom of expression.” Instead, the Ninth Circuit and the Morgan Hill Unified School District prefer to teach schoolchildren that, if you want to shut up other fellow students, just rely on the heckler’s veto. The school should punish the speaker, not the heckler. This school district is not very good at teaching tolerance: earlier, gay students sued this same school district for failing to take action to protect them from harassment from their fellow students. It would be much better if the school followed Rodney King’s plea that we all should learn to “get along.”