Flags and Free Speech: Constitutional Rights in Classrooms

By Taryn MacKinney

In late February of 2014, the US Court of Appeals for the Ninth Circuit ruled in a controversial free speech case brought against a Northern California school district by the parents of three Caucasian students. The case was not the first of its kind in recent years, and it is unlikely to be the last. 

On Cinco de Mayo of 2010, school administrators of California’s Live Oak High School asked a group of Caucasian students – donning shirts with prominent American flags – to turn their shirts inside out. The school’s previous Cinco de Mayo celebrations had been fraught with threats of violence, stemming from racial tensions between Hispanic and Caucasian students when the latter wore similarly provocative shirts, chanted pro-American sentiments, and, in 2009, even hung a makeshift American flag from a tree on campus. The flag-donning incident angered several Hispanic students, who accused the teens of blatant racism and exchanged “profanities and threats” with them. Fear of violence and potential gang involvement prompted administrative intervention. 

It’s no surprise, then, that school officials in 2010 were concerned about similar altercations. Assistant Principal Miguel Rodriguez, directed by Principal Nick Boden, asked the students to turn their shirts inside out or take them off. The students refused, even acknowledging the safety risks they were assuming. Two students returned to class after Rodriguez deemed their shirts less provocative, but the remaining two students – refusing to remove their shirts – were asked to return home with no academic consequences. The students did so, but all, including the teens who returned to class, were threatened with violence later that day.

The students and their parents later brought suit against the Morgan Hill Unified School District, Boden, and Rodriguez, “alleging violations of their federal and California constitutional rights to freedom of expression.”[1] The court defended the district and its administrators: “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” wrote Circuit Judge McKeown. [2]

Freedom of speech in schools has long been debated. The court referenced the “well-recognized framework” of Tinker v. Des Moines (1969), which upheld a student’s right to free speech in school – unless a school official could show that a prohibitory action “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” [3] The boundaries established by Tinker were fuzzy at best; since Tinker v. Des Moines, the Supreme Court and circuit courts have endlessly toyed with the confines of free speech in schools. In the well-known case of Bethel School District v. Fraser (1986), the Supreme Court added parameters to the notion of free speech in school; so too did Hazelwood v. Kuhlmeier (1988) and Morse v. Frederick (2007).

With the limits of Tinker v. Des Moines unearthed in these cases, it was no surprise that the Easton Area School District v. B.H. case (2013) turned heads. In it, the US Court of Appeals for the Third Circuit defended two students’ right to wear “I  ♥  boobies” bracelets, rather than defending the school district that penalized the bracelet-wearers. The case was criticized because of the apparent capriciousness of the court’s distinction between lewd and acceptable language.

Such vague distinctions exemplify a fundamental struggle between different court interpretations of students’ free speech: when and where does one cross the line legally? In the case of Live Oak High School in 2010, the court deemed the threat of student violence to be sufficient justification for the administrators’ actions. But regardless, the court’s decision in this case and cases like it are by no means rooted in definitive law. Tinker v. Des Moines, though establishing the framework for free speech in schools, is notoriously vague. As courts struggle to balance school authority and safety with first amendment rights, the scale is likely to tip back and forth for many cases to come. 


[1] Dariano v. Morgan Hill Unified School District <http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf>
[2] Ibid.
[3] Tinker v. Des Moines <http://supreme.justia.com/cases/federal/us/393/503/case.html>

Photo Credit: Flickr user arbyreed