I probably wasn’t the only reader who did a double take when I read this in The Times on Thursday:
“A Northern California high school that asked students to remove American flag shirts on Cinco de Mayo acted reasonably to avoid igniting ethnic tensions, a federal appeals court ruled unanimously Thursday.”
My first thought was: This will provide Rush Limbaugh and Fox News with material for a month’s worth of rants about liberal political correctness run amok. I can already hear the catch phrase: “Mexican flag, si; American flag, no.”
My second thought was: The 9th Circuit really doesn’t grasp the concept of free speech in public schools. In 2006 the same court ruled that it was permissible for a school in the San Diego area to come down hard on a student who wore a T-shirt saying “Homosexuality Is Shameful” and "Be Ashamed, Our School Embraced What God Has Condemned." (He was protesting the school’s observance of a “Day of Silence” designed to teach tolerance of gay and lesbian students.)
My third thought was that I should read the court’s opinion, which I have done.
My fourth thought is that the decision may -- barely -- satisfy the Supreme Court’s standards for the suppression of student speech. In the 1969 case of Tinker vs. Des Moines School District, the court said that students don’t shed their free-speech rights “at the schoolhouse gate.” But it also said that schools could limit those rights to prevent “substantial disorder or invasion of the rights of others.”
In her opinion for the court, Judge M. Margaret McKeown noted that there had been a history of ethnic tension and even violence at Live Oak High School. On Cinco de Mayo in 2009, there was an “altercation” between white and Latino students and some white students hung an American flag from a tree on campus and chanted “USA!”
When what the court calls the “school-sanctioned celebration of Cinco de Mayo” came around again in 2010, some white students wore American flag shirts to school, prompting one student to suggest to assistant principal Miguel Rodriguez that “there might be problems.” McKeown also notes that a “group of Mexican students asked Rodriguez why the Caucasian students ‘get to wear their flags out when we don’t get to wear our flag.’ ”
Fearing trouble, Principal Nick Boden asked Rodriguez to tell the students with the American flag shirts to turn them inside out or take them off. (The students refused to do so, and two whose shirts displayed “prominent” flag imagery were allowed to go home.) Rejecting the claim that the school had violated the students’ rights, McKeown said that the school’s actions “presciently avoided an altercation."
Maybe so, but the school’s actions come very close to what is called the “heckler’s veto” -- suppressing speech because it might cause people who heard it to act inappropriately.
My fifth and final thought is this: School officials have a hard job, made even harder by a multicultural student body and simmering ethnic tensions. But, as the court notes, the adults in charge of Live Oak High School knew from experience that the school’s observance of Cinco de Mayo might lead to disruption or worse.
So why not deal proactively with the issue, by making it clear ahead of time that there would be consequences for messing with a student because he or she wore a shirt with the American flag -- or the Mexican flag for that matter? If the school is incapable of maintaining discipline, maybe it shouldn’t celebrate Cinco de Mayo.
Follow Michael McGough on Twitter: @MichaelMcGough3