More than 4 years ago on May 5, 2010, Cinqo de Mayo, four students at Live Oak High School in Morgan Hill, California — a school with a predominant Mexican-American student body — were ordered by the vice principal Miguel Rodriguez to turn their American flag T-shirts inside out.
One of the boys, Daniel Galli, said they were told they could wear the flag T-shirt any other day “but today is sensitive to Mexican-Americans because it’s supposed to be their holiday so we were not allowed to wear it today” because their T-shirts were “incendiary” and could lead to fights on campus.
The boys said their T-shirts were an expression of their American pride. When they refused to turn their T-shirts inside out, they were ordered to go to the principal’s office and threatened with suspension. So the boys went home to avoid suspension.
The boys and their families met with a Morgan Hill Unified School District official. The district released a statement that “The district does not concur with the Live Oak High School administration’s interpretation of either board or district policy related to these actions.”
The boys were not suspended and were allowed to return to school, one of them wearing an American flag T-shirt. (Read more about this here.)
Fast forward four years.
Eric Owens reports for The Daily Caller that on Sept. 17, 2014, Constitution Day, the notoriously liberal U.S. Ninth Circuit Court of Appeals issued an order declining a request for an en banc (full court) hearing in a case involving the four Live Oak High School who were sent home for wearing American flag T-shirts on Cinco de Mayo.
In so doing, the Ninth Circuit judges signaled their agreement with a lower district court and with a trio of appellate judges that officials at Live Oak High School in Morgan Hill, Calif. could censor students who wanted to wear flag-emblazoned shirts.
“[N]o further petitions shall be permitted,” the court ordered.
In the three-judge ruling, the Ninth Circuit held that school officials have wide latitude to limit freedom of expression: “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. Here, both the specific events of May 5, 2010, and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”
An online version of the opinion, Dariano v. Morgan Hill Unified School Dist., is available here.
The practice of limiting one group’s free speech rights because that speech might cause another group to react violently is known as a “heckler’s veto.” It is understood by free speech advocates to have a chilling effect on First Amendment rights.