Court Rules Schools Could Ban Flag T-Shirts on Cinco de Mayo

Neil Vegoinre, Staff Writer

By Neil Vegoinre

Cinco de Mayo is just one holiday that may be affected by an appeals court ruling, known as the “John Dariano v. Morgan Hill Unified School District” case. The saga began back on May 5, 2010 when school officials at Live Oak High School in Morgan Hill, California, asked students to remove their “…American flag T-Shirts to turn them their shirts inside out or take them off.” The students then refused to do so. During the case, school administrators cited the need to preserve “safety” during the holiday, and that by having these American flag T-shirts on, it presented a risk from miscreant-like behavior. On February 27, 2014, the 9th appellate court voted in favor of the school officials.

This is certainly not the first time that students have challenged the authority of K-12 school officials in terms of free speech or expression cases. The Plaintiffs (students) in “John Dariano v. Morgan Hill Unified School District” pose the judicial question that violations occurred with respect to the 1st, 4th, and 14th constitutional amendments. The 1st amendment grants citizens the right to free speech, free religious practice, freedom from censorship of the press, and the right to peacefully assemble to protest. The 4th protects due process of law, and the 14th which grants states any rights not reserved by the federal government. Ultimately, the U.S. Supreme Court has upheld that, generally, private schools have substantially more leeway to censor student’s rights than publically funded schools, under In loco parentis, a Latin phrase which means that a school is treated like a students’ “parent” while they are in the custody of a school. In loco parentis, has allowed for schools to give over-arching credence towards the goal of “Education”, and that any disturbance must be suppressed.

However, freedom of speech and expression are relative. Students do still have some rights protected by the constitution in this area. The American Civil Liberties Union (ACLU) describes it that you “…have the right to express your opinions as long as you do so in a way that doesn’t ‘materially and substantially’ disrupt classes or other school activities”. A number of cases support this point: “Board v. Barnette [1943]” which ruled that students are not required to solute the flag, “Tinker v. Des Moines [1969]” which ruled that students wearing black arm bands protesting the Vietnam war could not be forced to remove the bands by officials, and “New Rider v. Board [1973]” which ruled that officials were not allowed to force a group of Pawnee Native American students to cut their hair to fit the dress code. These cases essentially demonstrate that minors do have freedoms of speech and expression to a degree, yet there have been cases in the opposite direction as well.

The Tinker case, also establishes that “[If] conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” So where does this all lead us? Essentially the critical question is, does wearing an American Flag T-Shirt cause a disruption which stifles learning? Or is it simply peaceful expression?

In “Bethel School v. Fraser [1986]” the use of “crude” language during a student’s speech allowed the courts to rule that school officials had the right to suspend the student. And in 2007, a student conducting an off campus promotional campaign “Bong hits for Jesus” was suppressed by school officials owing to the reference to “illegal drugs”, and being in the presence of “School administrators and teachers” in the “Morse v. Frederick” case.

So although the student was off campus, being a minor and a student and in the “presence” of administrators got them suspended, and it appears that in the past couple decades, students have been losing ground in terms of free speech and expression. The Durano case should give Latino-Americans some pause. As our Legislative Branch has expanded over the past 40-50 years, the Judicial Branch, a critical check on the other two branches, has been in greater favor of censorship and suppression for citizens. To some, this may just seem like another case, but the ramifications can be profound. We cannot know until precedence from this case is used in future free speech and expression cases. With the advent of the post-9/11 society in which we live in, citizens and free people need to voice themselves. In the wise words of Hugo Black: “The Framers of the Constitution knew that free speech is the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny.”

Neil Vegoinre is a Staff Writer for Latino Giant. Neil grew up in South Florida, but after graduating from Broward College with a degree in Mathematics, he moved to Orlando. Today, he is an undergraduate student at the University of Central Florida in Orlando studying Business and Marketing, and also works as a Managerial Accounting Tutor. In the future, Neil aspires to be an entrepreneur, and a force for good in his community, and to continue to be active in political thought and discourse.