A California school dispute that arose when students wore shirts emblazoned with the American flag on Cinco de Mayo could prompt the Supreme Court to take a new look at free-speech rules for high schools.
Ever since students protested the Vietnam War by wearing black armbands, the justices have said the 1st Amendment protects the rights of students to peacefully protest at school, so long as their actions do not lead to a "substantial disruption."
In recent years, however, some school officials have moved to curtail political fashion statements such as wearing T-shirts with Confederate flags or anti-gay slogans. They have argued that some limits were necessary to avoid offending other students and possibly provoking violence.
On Friday, the justices met to decide on hearing a case asking whether a school official's fear of violence justified disciplining students for wearing American flags on their shirts.
The appeal in Dariano vs. Morgan Hill Unified School District asks the justices to decide whether wearing an American flag can be curtailed as an unnecessary provocation, or instead is a right of every citizen protected by the 1st Amendment. A decision on whether they will accept the case could come as soon as Monday.
The legal battle began on May 5, 2010, at Live Oak High School south of San Jose, when several students wore shirts bearing the American flag on the Mexican holiday marking the May 5, 1862, defeat of French invaders.
Their protest came in response to an incident the year before when a group of Mexican American students unfurled a Mexican flag on the holiday and paraded around the campus, triggering tensions with white students who began chanting, "USA! USA!"
The school had seen at least 30 fights between white and Latino students, school officials said.
Upon seeing the white students wearing U.S. flags, Mexican American students called them racists and complained to Assistant Principal Miguel Rodriguez.
Fearing violence, the assistant principal told several of the white students wearing the American flag that they had to turn their shirts inside out or go home. They chose to leave.
The incident caused an uproar in the community, and Fox News channel picked up the story.
"This is heartbreaking to the students and parents who see the flag as a symbol of national unity," said Los Angeles lawyer William Becker, who sued on behalf of several parents. "It rewards those who believe the flag is a symbol of hostility toward minorities. If they think there is a problem, then don't hold a Cinco de Mayo celebration."
He filed a free-speech suit on behalf of John and Dianna Dariano and two other families, but a federal judge in San Francisco dismissed the claim on the grounds that educators had acted to avoid violence or a disruption at school.
The 9th Circuit Court in San Francisco affirmed that decision last year. "Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence," wrote Judge Margaret McKeown. It was "reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real."
Judge Diarmuid F. O'Scannlain dissented, saying the ruling "permits the will of the mob to rule our schools." He noted that 1st Amendment law frowns on a "heckler's veto," by which a speaker can be shut down not for what he says, but how others may react. He questioned how the wearing of an American flag shirt could be seen as offensive or disruptive.
Lawyers for the school district have urged the Supreme Court to turn down the case. They say all the students and even the principal have moved on from the school, and there is no need to revisit the matter.
The justices met behind closed doors Friday to go over dozens of pending appeals, including the flag case. The vast majority of appeals are rejected.
But some 1st Amendment lawyers think the flag case has a chance of winning a review because of uncertainty over how free-speech principles work in schools today.
The court has mostly steered clear of free-speech disputes at public schools in recent years, with one exception. A 5-4 ruling in 2007 upheld a principal's disciplining of a student for holding up a banner that said "Bong Hits for Jesus" on the grounds the sign could be seen as promoting illegal drugs.
But Justices Samuel A. Alito Jr. and Anthony M. Kennedy, who were in the majority in that case, stressed that they would not go along with restricting speech "commenting on any political or social issue."
By coincidence, the flag appeal petition came before the justices in the same week they were deciding whether a Texas group had a free-speech right to a specialty license plate bearing a Confederate battle flag. A state board refused the request on the grounds the symbol would be offensive to many, especially African Americans.
The justices sounded closely split on whether strict free-speech rules should apply to state license plates.