In the case of Dariano v Morgan Hill Unified Sch Dist, the US Court of Appeals for the Ninth Circuit, sitting en banc, has denied the petition for a rehearing of a case that pits students’ rights of free speech—specifically, wearing shirts with the US flag on them, in the face of Mexican hecklers—against school administrators’ rights to maintain an orderly school environment.
During any course on the Constitution, one of the first topics covered about freedom of speech rights is the idea of a heckler’s veto. As a general rule, the government can’t prohibit speech simply because people in the audience who hold opposing viewpoints might raise objections, like those of a heckler at a comedy show.
However, as with every other application of free speech rights in the First Amendment, there are exceptions. Schools can prohibit speech that is likely to incite an imminent lawless action, such as a gang riot or some other disruption to school operations. That’s what the Supreme Court said in the case of Tinker v Des Moines Independent Community School District, 393 US 503 (1969).
Just how big a disruption the speech has to cause has been the subject of considerable debate at the trial court level, but the Tinker ruling simply said schools can restrict speech if it can reasonably be expected to cause a “substantial” disruption in school operations.
The events of this particular case took place at a Cinco de Mayo celebration on May 5, 2010, at Live Oak High School in Morgan Hill, Calif. School officials said the celebration was being held to honor “the pride and community strength of the Mexican people who settled this valley and who continue to work here.” But the celebration has a history of touching off fighting between white and Mexican students. At the 2009 celebration, for example, different ethic groups of students yelled threats and obscenities at each other after an American flag was displayed, and school administrators had to intervene.
In 2010, the year of record here, three white students wore T-shirts displaying an American flag, and when administrators heard about the T-shirts, they immediately became fearful that the students wearing them might be in danger, given the recent Cinco de Mayo history. An assistant principal at the high school therefore asked the students to remove their shirts or turn them inside-out so the flags wouldn’t be visible. They refused: the students all wanted to risk violence in order to express themselves about their country.
After two students ultimately refused to comply with the principal’s instructions, they were sent home with excused absences and were not disciplined. However, at home, they received threatening messages and texts over the next few days, and their parents kept them home for fear of their safety. The parents filed suit in US district court against the school district and two principals. The suit against the school district was dismissed on 11th Amendment grounds of sovereign immunity, but the suit against the assistant principal was heard.
A three-judge panel for the Ninth Circuit agreed with the district court and held that school officials had not violated students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo, because such displays might provoke violence between different ethnic groups at the school.
According to court documents, school officials made the decision to send the students home because they could reasonably anticipate violence and because they were reasonably concerned about student safety “in conversations with students at the time of the events, in conversations the same day with the students and their parents, and in a memorandum and press release circulated the next day.”
They felt, and the majority agreed, that an argument based on the heckler’s veto “might be effective outside the school context, but it ignores the special characteristics of the school environment.” The court, said the panel, had “not found case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker.” So, the speakers, those students with American flags on T-shirts, were blameless, but other students, the hecklers, gave the school the right to prohibit the wearing of flags.
The focus of Tinker, said the panel, is on the “school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.”
The dissent is perhaps more interesting than the majority opinion here. Dissenting judges maintained that restricting student speech based on the possible albeit likely reaction of other students “is not a legitimate basis for suppressing student speech absent a showing that the speech in question constitutes fighting words, a true threat, incitement to imminent lawless action, or other speech outside the First Amendment’s protection.” Does the US flag constitute “fighting words”?
A concern expressed in the dissent is that the ruling in this case gives hecklers a lot of power. In fact, by threatening actual violence against the students who wanted to wear the American flag, the hecklers have effectively enlisted the government (the school) to help silence them. What do you think? See Common Core English language arts literacy standard RI.11-12.8 for more information.
