Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day. The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009. The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.
The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503. In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities. The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School.
The Ninth Circuit seems to have had an easy time disposing of this issue under Tinker due to the previous altercation surrounding the holiday at the school in the previous year. I’m curious, however, as to how much of this decision rests on the fact that the day in question was Cinco de Mayo, or that the school has a history of gang violence. That is, can other school districts with no or very little violence rely (persuasively) on Dariano as protecting their decisions to take actions similar to those of the Principal of Live Oak High School on a regular school day unaccompanied by any official or unofficial holiday? This is, of course, the concern of many around the country: does this decision pave the way for schools to ban the wearing of the American Flag on clothes because it may offend students of other cultures? I would think not because this decision seems to be based on a very specific set of facts. However, whether other Circuits will use the Ninth Circuit’s decision as persuasive support to uphold a school’s ban, though unlikely, remains to be seen.